SCHOOL  OF  LAW 
LIBRARY 


\ 


TREATISE 


ON   THE 


LAW   OF    LEGACIES, 

BY  THE  LATE 

R.  S.  DONNISON  ROPER,  ESQ. 

BARRISTER  AT  LAW,  OF  GRAY'S  INN. 


UNDER  AN   ENTIRELY    NEW  ARRANGEMENT,  AND  WITH  VERY   CONSI- 
DERABLE ADDITIONS, 

BY  HENRY   HOPLEY  WHITE,  ESQ. 

BARRISTER    AT  LAW,  OF   THE  MIDDLE  TEMPLE. 


IN   TWO   VOLUMES. 
VOL.  I. 

FIRST  AMERICAN, 
PROM  THE  THIRD  LONDON  EDITION. 


ROBERT  H.  SMALL— CHESNUT  STREET. 
1829. 


T 


lU-RSELL  AlfD   MAHTIMT, 
PRIWTER9. 


TO 


THE  RIGHT  HONOURABLE 


JOHN,    EARL    OF   ELDON, 


&c.  &c.  &c. 


THIS  WORK 


is, 


WITH  HIS  LORDSHIP'S  PERMISSION, 


MOST  RESPECTFULLY 


INSCRIBED, 


BY 


THE  EDITOR. 


PREFACE. 


THE  late  learned  Author  had  intended  to  republish  his 
Treatise  on  the  Law  of  Legacies  under  an  entirely  new 
arrangement;  and  at  his  death  left  the  thirteen  first  chap- 
ters and  part  of  another  prepared  with  that  view,  but 
without  any  other  manuscripts  from  which  even  an  out- 
line of  his  plan  respecting  the  remainder  of  the  work 
could  be  collected.  The  completion  of  this  design  de- 
volved upon  the  Editor,  in  the  prosecution  of  which  he 
has  avoided,  as  much  as  possible,  alterations  in  the  manu- 
script chapters  left  by  the  late  Author,  beyond  verbal 
corrections  and  the  addition  of  subsequent  decisions. 

The  substance  of  the  former  Editions  will  be  found  in 
the  present,  but  under  a  new  arrangement,  which  has 
been  adopted  in  the.  hope  of  rendering  the  work  more 
useful,  and  at  the  same  time  a  more  accurate  and  compre- 
hensive analysis  of  a  complicated  subject.  To  obviate 
objections  which  have  been  made  to  the  lengthened  state- 
ments of  cases  in  the  former  Editions,  considerable  pains 
have  been  bestowed  in  compressing  them  within  the 
smallest  compass  consistent  with  utility. 

The  Editor  feels  confident  that  the  chapters  left  by  the 
late  Author,  and  forming  about  one  third  of  the  present 
volumes,  will  not  disappoint  the  expectations  of  those 
acquainted  with  his  intention  of  republishing. 


vi  PREFACE* 

In  presenting  to  the  profession  the  remaining  portion  of 
the  work,  the  Editor  cannot  divest  himself  of  much  anxie- 
ty, lest  an  undertaking,  so  ably  commenced,  should  have 
been  concluded  in  a  manner  derogating  from  the  high 
reputation  of  his  deceased  friend,  and  he  entertains  the 
hope,  that  any  attempt  to  diminish  the  labours  of  others, 
in  a  subject  of  such  acknowledged  intricacy,  will  be 
received  with  indulgence. 

Lincoln's  Inn, 
January,  1828. 


CONTENTS 

OF  THE  FIRST  VOLUME, 


CHAPTER  I. 

Donations  mortis  causa  page  25 

SECT.  I.  The  description  and  nature  of  a  Donatio  mortis 

causa  ib. 

SECT.  II.  The  circumstances  required  to  constitute  a  Do- 
natio mortis  causa  26 
I . — As  to  the  gift  of  the  Donee  ib, 
2. — The  delivery  of  Possession ;  and,  27 
3. — Of  Evidence  admissible  to  prove  the  gift  and  the 

the  sufficiency  of  such  evidence  39 

SECT.  III.  What  will  defeat  the  Donation  when  originally 

good  41 


CHAPTER  II. 

Who  may  be  a  Legatee  ;  and  of  the  Descriptions  of  Lega- 
tees 42 
SECT.  I.  Legacies  to  legitimate  children  and  grand-chil- 
dren                                                                      45 
1. — Where  children  living  at  the  date  of  the  will,  are 

entitled  in  exclusion  of  those  afterwards  born      ib. 
2. —  Where  children  living  at  the  death  of  the  testator, 

are  entitled  in  exclusion  of  those  after  born  48 

3. — The  right  of  a  legitimate  child  in  ventre  sa  mere      52 
4. —  When  children  living  at  the  time  the  fund  becomes 
distributable  after  the  testator's  death,  are  and 
are  not  entitled  in  exclusion  of  those  after-born. 
And,  54 

First, —  When  the  division  is  postponed  until 

a  child  or  children  attain  twenty-one  ;  and,     ib. 
Second, —  When  the  distribution  is  deferred 

during  the  life  of  a  person  inesse  -      59 

5. —  When  a  younger  child  considered  an  eldest        -      63 
6. —  When  an  eldest  or  only  child  considered  a  younger    65 


viii  CONTENTS. 

SECT.  I.  Legacies  to  legitimate  children — continued. 

7. — When  a  child  required  to  answer  the  description 

literally  66 

8. — When  the  word  "children"  witt  and  will  not  in- 
clude grand-children,  fyc.  69 
9. — When  the  words  "  children"  and  "grand-children" 
will  and  will  not  comprehend  great  grand-chil- 
dren, fyc.;  and  of  the  claims  of  grand-children 
by  marriage  75 
SECT.  II.  Legacies  to  natural  children                                    76 
1  ty-  2. — Effect  of  bequests  to  unborn  natural  children    ib. 
3. — Capacity  of  natural  children  living  at  the  date  of 
the  will,  to  take  under  the  description  of  chil- 
dren: and  the  evidence  admissible  in  those  cases    78 
SECT.  III.  Legacies  to  <(  heirs,"  who  entitled                        85 
1 . — When  next  of  kin                                                      ib. 
2. — When  children                                                             ib. 
3. — When  the  heir  88 
SECT.  IV.  Legacies  to  "  issues,"  who  entitled               -       ib. 
1. — Grand-children,  fyc.    -                                             ib. 
2. — When,  the  issue  of  children  only  who  were  living 

at  the  date  of  the  will  -      89 

3. — When  restrained  to  children      -  -      ib. 

SECT.  V.  Legacies  to  "  relations,"  who  entitled  92 

1 . —  When  restrained  to  next  of  kin,  as  where  the  be- 
quest is —  -  ib. 
To  relations  generally;  or                                 ib. 
To  near  relations;  or      -  93 
To  poor  relations;  or      -  94 
To  most  necessitous  relations  '     -  95 
2. —  When  the  word  relations  will  comprehend  other  re- 
latives than  next  of  kin ;  as                                  96 
Where  the  legacy  is  given  to  poor  as  a  perma- 
nent charity  ;  'or                                             ib. 
Where  the  bequest  is  to  poor  or  poorest  rela- 
tions, at  the  discretion  of  executors,  fyc. 
And  the  nature  of  such  discretion ;  or           97 
When  the  intention  appears  upon  the  will  to 
include  more  distant  relations  than  next  of 
kin                                                            -     100 
3. — When  the  word  relations  may  not  include  all  the 

next  of  kin;  as  -     101 

In  bequests  to  my  nearest  relations  or  my 

nearest  relation  -      ib. 

Construction  of  the  term,  nearest  relation        102 
Construction  of  the  words  nearest  relation, 
of  the  name,  or  of  the  name  and  blood  of  the 
testator;    and  the  effect  of  assuming  the 
name  by  statute  or  royal  license  -      103 

4. —  Whether  relations  by  marriage  are  included  in  a 

bequest  to  relations  -       1 04 


CONTENTS.  ix 

SECT.  VI.  Legacies  to  "  next  of  kin."  106 

1. —  Who  entitled  under  the  description  -      ib. 

•2. —  Whether  relations  by  marriage  -      ib. 

3. — Sis  to  distinction  when  the  Statute  of  Distribution, 
or  intestacy  is  or  is  not  referred  to  in  the  be- 
quest -  ib. 

4. — Bequest  to  next  of  kin  in  equal  degree  -     108 

SECT.  VII.  Legacies  to  "  personal  representatives,"  or 

"  legal  personal  representatives"  ib. 
I.— When  executors  or  administrators  entitled  under 

the  description      .  -            -            -  ib. 

2. —  When  next  of  kin                                               -  110 

3. — When  children;  and  113 

4. — When  a  husband  or  wife  ib. 

SECT.  VIII.  Construction  of  bequests  when  limited  to  exe- 
cutors and  administrators  -      114 

SECT.  IX.  Legacies  to  "  descendants"  ib. 

SECT.  X.  The  word  "  family,"  who  entitled  under  it          115 
1. — When  the  bequest  is  immediate  and  absolute    -        ib. 
2. —  When  the  bequest  to  family  is  connected  with  a 
power  of  appointment.     And  the  different  con- 
struction when  the  power  is  one  of  selection,  and 
when  not  118 

SECT.  XI.  Legacies  to  "  nephews  and  nieces"  119 

SECT.  XII.  Legacies  to  "  first  and  second  cousms"  120 

SECT.  XIII.  Legacies  to  <e  government"  ib. 

SECT.  XIV.  Legacies  to  "servants"  121 

1 — Who  entitled  under  the  description;  and  ib. 

2. — Ofparol  evidence  in  this  case  ib. 

SECT.  XV.  Of  the  periods  when  the  persons  described  by 
the  terms  "  family"  or  "  next  of  kin,"  £c. 
must  be  in  esse  to  take  under  the  descrip- 
tions 122 
1 . — When  at  the  date  of  the  will  123 
2. — When  at  the  death  of  the  testator ;  and  ib. 
3. — When  at  the  happening  of  an  event  subsequently  to 

the  testator's  decease  -      124 

SECT.  XVI.  When  legatees  take  per  capita,  or  per  stirpes, 

or  per  capita  et  stirpes  126 

1 . — When  per  capita  i  b . 

VOL.  i.  B 


K  CONTENTS. 

SECT.  XVI.  When  legatees  take  per  capita,  &c. — continued. 

2. —  When  per  stirpes  ;  and  128 

3. — When  per  capita  et  stirpes  130 

SECT.  XVII.  Effect  of  mistakes  in  the  names  of  legatees      131 
1 . —  When  error  in,  or  omission  of  name  ivill  be  rectifi- 
ed by  the  description  of  the  person  or  the  context 
of  the  will  -  ib. 

2. — When  mistake  in  name  corrected  by  parol  evidence  133 

SECT.  XVIII.  Effect  of  mistakes  in  the  descriptions  tf  lega- 
tees ;  and  the  admission  of  parol  evidence  in 
those  cases  134 

1. — When  error  in  description  rectified  by  the  name        ib. 
2. —  When  such  error  is  occasioned  by  fraud  it  will 

avoid  the  bequest  -     1 36 

3. — When  error  in  description  corrected  by  parol  evi- 
dence, and  when  such  evidence  is  inadmissible     1 37 
4. —  When  the  evidence  is  insufficient,  and  the  bequest 

void  for  uncertainty ;  and  -     139 

5. — When  that  evidence  is  insufficient,  and  the  legacy 

established        -  -  -     141 

SECT.  XIX.  Consequences  of  imperfect  descriptions  of.  or 
imperfect  references  to,  legatees  apparent  in 
wills,  and  of  the  admission  of  parol  evidence 
in  these  cases  146 

1. — Where  a  blank  is  left  for  a  Christian  name  147 

2. — Where  a  blank  is  left  for  the  whole  name  -       ib. 

3. — When  only  the  initials  of  a  name  are  written 


CHAPTER  TIL 


Of  Specific  Legacies  149 

SECT.  I.  What  are  specific  legacies,  and  the  privileges  and 

disadvantages  attending  them  ib. 

SECT.  II.  Specific  legacies  of  individual  personal  chattels  150 

SECT.  III.  Specific  legacies  of,  and  relating  to,  real  chat- 
tels and  estates  151 
1. — Of  real  Chattels  ib. 
2. — Of  rents  and  annuities  out  of  real  chattels  and  es- 
tates                                   -  1 52 
3. — Of  gross  sums  of  money  out  of  them;  and      -  153 
4.— Of  the  produce  from  their  sales  1 54 


CONTENTS.  xi 

SECT.  IV.  Specific  legacies  of  sums  of  money  and  personal 

annuities  -      155 

1 . — Of  money  ib . 

2. — Of  annuities  -       156 

SECT.  V.  Specific  legacies  of  stock  or  annuities  in  public 

funds  -  157 

1 . — Effect  of  "  my"  preceding  the  word  "  stock"  "ib. 

2. — Bequests  of  stock  generally      -  ib. 

3. —  Construction  when  stock  is  bequeathed  generally 

in  a  particular  fund  -  159 

4. when  expressly  out  of  particular  stock          166 

5. when  not  expressly  out  of  stock,  but  stock 

is  mentioned  as  the  fund  in  which  the  money 
bequeathed  is,  or  is  supposed  to  be  invested  -  169 

S KCT.  VI.  Colonial  property  171 

Legacies  of  when  and  when  not  specific  ib. 

SECT.  VII.  Legacies  of  debts  172 

1. — When  specific  -       173 

2.— When  not  -       178 

SECT.  VIII.  Bequests  of  general  personal  estate  -      184 

1. — When  specific  -  ib. 

2.— When  not        -  -  -  185 


CHAPTER  IV. 

Rights  of  Specific  Legatees  under  the  words  of  the  Will, 
and  against  the  Executors  ;  and  the  Rights  of  Spe- 
cific legatees  of  Goods  and  Chattels  in  remainder 
against  specific  Legatees  for  life  -  187 

SECT.  I.  What  personal  estate  will  pass  to  the  specific  le- 
gatees under  the  words  of  the  will  -    188 

1. —  Considering  when  the  words  refer  to  the  date  of 

the  will,  and  when  to  the  death  of  the  testator      ib. 

2. —  What  will  pass  by  the  words  goods,  household 
goods,  personal  estate,  property,  and  things, 
when  referred  to  as  being  in  a  particular  place ; 
and  -  189 

3. — When  the  words  goods,  fyc.  will  be  restrained  to 
such  only  as  are  ejusdem  generis  with  those  spe- 
cified in  the  will,  and  when  not  -  *  -  197 

4. —  Construction  of  the  words  household  furniture, 
household  stuff,  chattels,  live  and  dead  stock, 
stock  upon  a  farm,  effects,  utensils,  money,  se- 
curities for  money,  medals,  debts,  linen  and 
clothes,  farm  and  plate  -  203 


xii  CONTENTS. 

SECT.  II.  What  will  pass  a  specific  bequest  of  personal  es- 
tate in  the  colonies  -  217 

SECT.  III.  Of  the  title  of  a  specific  legatee  to  an  excess  of 
the  fund  whether  of  capital  or  profits  accru- 
ed between  the  date  of  the  will  and  the  death 
of  the  testator  218 

SECT.  IV.  Of  mistakes  in  regard  to  the  subject  specifically 

bequeathed  -  219 

1. — In  the  description  of  the  fund,  and  the  admissibili- 

ty  of  extrinsic  evidence  -  ib. 

2. — Of  the  admission  of  such  evidence  to  show  a  testa- 
tor's intention  by  explaining  the  sense  in  which 
he  used  the  words  of  the  bequest ;  and  -  222 

3. — The  consequences  of  mistakes  in  the  calculation  of 
the  specific  funds  when  they  are  only  given  to 
one  person,  and  when  to  several  persons  infrac- 
tional  parts  227 

SECT.  V.  The  rights  of  specific  legatees  against  the  execu- 
tors -  -  -  229 

SECT.  VI.  The  rights  of  specific  legatees  of  goods  and  chat- 
tels in  remainder  against  the  preceding 
tenants  for  life  231 

1. —  When  an  inventory  or  security  will  be  required; 

and  -  ib. 

2. — The  rights  where  a  tenant  for  life  of  a  lease  surren- 
ders the  old  and  takes  anew  one ;  and  -  ib. 

3. — Of  contribution  on  the  payment  of  fines  232 


CHAPTER  V. 

Of  the  Ademption  and  Abatement  of  Specific  Legacies  237 

SECT.  I.  Of  the  ademption  of  specific  legacies  ib. 

1. — Of  stock            -            ....  238 

2. — Of  debts  or  securities                -  242 

3-—  Of  goods,  Sfc.                         ....  245 

4. — Of  partnership  shares                ...  248 

§. — Of  leases  for  years  and  for  lives             -            -  249 

SECT.  II.  Abatement  of  specific  legacies  253 

1. — Rule  upon  that  subject               -                        -  ib. 

to  abatement  amongst  several  legatees  of  the 

same  specific  fund;  and        -            .            -  ib. 


CONTENTS.  xiii 

SECT.  II.  Abatement  of  specific  legacies — continued. 

3. — Of  abatement  of  specific  devisees  of  freehold  estates 
with  specific  legatees  of  chattels,  under  which 
head  are  considered  estates  pour  autre  vie  254 

4. — Jis  to  abatement  of  legacies  in  part  specific,  and  in 

part  general  -  255 


CHAPTER  VI. 

Of  General  Legacies,  and  their  Ademption,  and  of  Parol 

Evidence  in  certain  cases  on  that  subject  .         256 

SECT.  I.  Of  the  ademption  of  legacies  given  as  portions  to 

children  by  their  father  257 

1. — When  the  children  are  legitimate  -    ib. 

2. — Exceptions  to  the  presumption  of  ademption  in 

cases  under  the  last  article  -  261 

SECT.  II.  Of  the  ademption  of  legacies  by  subsequent  ad- 
vancement when  the  legatees  are  consider- 
ed strangers  to  the  testator,  and  the  legacies 
not  portions  265 

1. — When  the  legacies  are  mere  bounties  ;  and  of  be- 
quests to  natural  children  by  their  putative  fa- 
ther -  -       266 
2. — When  a  testator  has  placed  himself  in  loco  pa- 

rentis  -     268 

3  &  4. — Of  the  admissibility  of  Parol  Evidence  onthe 
last  subject ;  as  also  to  prove  an  intention  to 
adeem  when  the  testator  is,  or  is  considered  to 
be,  a  stranger  to  the  legatee  270 

5. — Of  the  sufficiency  and  insufficiency  of  such  evi- 
dence when  admissible  -  -  -  278 
6. — And  the  different  degrees  of  importance  attached  to 
parol  evidence,  in  detailing  declarations  of  testa- 
tors in  regard  to  the  times  when,  and  to  whom 
they  were  made                                                  -    282 


CHAPTER  VII. 

General  Legacies  and  their  Abatement.  The  Equity  of 
Legatees  to  follow  the  Assets.  And  the  Refunding 
of  Legacies  283 


xiv  CONTENTS. 


SECT.  I.  Of  the  abatement  of  general  legacies  284 

I . — What  legacies  to  abate  ib. 

2. — Heir's  liability  in  respect  of  lapsed  interests  in 

lands  accruing  to  him  -  -        285 

3. — fis  to  claims  of  particular  general  legatees  to  a 
priority  of  payment  to  others,  so  as  to  be  exempt 
from  abating:  considering —  286 

1. — Legacies  given  as  mere  bounties  287 

2. — Effect  of  a  testator's  declarations :  and  of  his  in- 
tentions otherwise  shown  to  give  a  preference; 
and  -  -  292 

3. — When  a  legacy  is  founded  upon  a  valuable  con- 
sideration -  -     297 
4. — Of  the  abatement  of  general  legacies  of  stock          298 

SECT.  II.  Rights  of  legatees  to  follow  the  assets  when  dis- 
posed of  by'the  executor,  and  the  produce 
wasted  .  -  ib. 

1. — Power  of  executors  to  sell  and  pledge  the  estate      299 
2. — Exceptions  to  that  power  -       302 

3. — Effect  of  acquiescence  upon  the  right  of  legatees  to 
follow  the  assets  -  313 

SECT.  III.  Of  the  refunding  legacies  314 

1. — M  the  suit  of  executors            -  -      315 

2. — At  the  suit  of  creditors  ;  and  -       316 

3. — jit  the  suit  of  unsatisfied  legatees         -  ib. 

4. — As  to  interest  payable  on  the  sum  refunded  -      318 


CHAPTER  VIII. 

Of  Lapsed  Legacies  319 

SECT.  I,  Of  the  lapse  of  an  individual  legacy  by  the  death 

of  the  legatee  during  the  life  of  the  testator  320 

1. — When  the  bequest  lapses,  although  made  to  the  le- 
gatee, his  executors  and  administrators  or  per- 
sonal representatives  -  -  ib. 

2.— Of  the  admissibility  of  parol  evidence  of  the  tes- 
tator's  intention  that  the  executors,  administra- 
tors, or  personal  representatives  were  meant  to 
take  if  the  legatee  died  before  him  -  322 

3. — Exceptions  to  the  rule  of  lapse  when  the  legacy  is 
given  to  the  executors,  administrators,  or  perso- 
nal representatives  of  the  legatee  -  323 

SECT.  II.  Of  lapse  (where  the  person  named  in  the  will  is 
debtor  to  the  testator)  depending  upon  the 


CONTENTS.  xv 

circumstance  whether  the  benefit  be  given 
as  a  legacy,  or  intended  in  the  nature  of  a 
release  -  -  325 

SECT.  III.  Effect  of  the  death  of  legatees  before  the  testa- 
tor upon  the  interests  of  persons  in  remain- 
der, when  the  legacies  are  limited  over  upon 
the  happening  of  particular  events  -  327 

1. — Of  lapse,  when  a  legacy  is  given  for  a  particular 
purpose,  with  a  bequest  over  if  the.  legatee  die 
before  the  object  be  accomplished ;  but  he  lives 
to  complete  the  purpose,  and  dies  during  the  life 
of  the  testator  ib. 

2. — Of  lapse,  when  the  event  upon  which  a  legacy  is 
given  over  happens  in  the  testator's  lifetime, 
and  the  legatee  dies  before  him  -  328 

3. — Of  lapse,  when  the  legatee  dies  before  the  testator, 
and  prior  to  the  event  happening  upon  which  the 
legacy  is  limited  to  another  person  -  329 

SECT.  IV.  Of  lapse  of  legacies  given  to  persons  in  joint-te- 
nancy, or  as  tenants  in  common  330 
1. — In  joint  tenancy  ib. 
2. — As  tenants  in  common ;  and                          -        -  331 
1. —  When  given  to  children                               -  333 
2. —  When  with  a  limitation  over  to  survivors  ; 

and          -  -         -     ib. 

3. — Of  lapse  of  accrued  shares  -336 

SECT.   V.  Of  lapsed  legacies  when  the  bequests  are  made 

under  powers  337 

SECT.  VI.  Of  the  persons  entitled  to  lapsed  interests  338 

1. — When  the  subjects  are  general  legacies  or  personal 

residues  -  -    ib. 

2. —  When  they  are  legacies  payable  out  of  lands,  or 

the  proceeds  of  lands  directed  to  be  sold  -  340 


CHAPTER  IX. 
Of  the  Conversion  of  Real  into  Personal  Estate  341 

SECT.  I.  Right  of  the  heir  or  devisee  to  the  surplus  of  real 
estate  subjected  to,  charged  or  devised  for 
particular  purposes,  as  well  where  a  sale  is, 
as  where  it  is  not  expressly  directed,  and 
their  respective  rights  to  lapsed  interests  343 


xvi  CONTENTS. 

SECT.  I.  Right  of  the  heir  or  devisee,  &c. — continued. 

1. —  When  the  devisee  is  entitled  to  the  surplus  -    343 

2. — When  the  heir  is  entitled  to  it;  and  -    348 

3. — Of  their  respective  titles  to  lapsed  interests        -    351 

SECT.  II.  Right  of  the  residuary  devisees  or  legatees,  to 
the  net  produce  from  a  sale  of  lands  under 
the  residuary  clause  -  352 

1. — When  the  net  proceeds  will  not  pass,  but  result  to 

the  heir;  and  -    ib. 

FIRST. —  When  the  residuary  bequest  isinthe 

same  will  that  devises  the  real  estate        -    ib. 
SECOND. —  When  it  is  contained  in  a  codicil  355 
2. — When  the  net  proceeds  will  pass  as  personal  estate 

under  the  residuary  clause  -  356 

SECT.  III.  Right  of  the  testator's  executors  and  next  of  kin, 

to  the  net  produce  from  the  sale  of  lands 
1. — Of  his  executors          -  ib. 

2. — Of  his  next  of  kin  -       359 

SECT.  IV.  Right  of  the  heir  or  of  the  devisees  of  proceeds 

from  a  sale  of  land  to  lapsed  interests  361 

1. — Where  the  proceeds  are  given  distinct  from  the  per- 
sonal estate  -      362 
2. — Where  the,  proceeds  are  given  and  blended  with 

the  personal  estate  -      363 

3. — Titleof  surviving  devisees  to  real  proceeds  lapsed  by 
the  death  of  one  or  more  of  their  companions; 
and  -  -  367 

FIRST. — When  they  originally  take  as  joint- 
tenants  ib. 
SECOND. — When  as  tenants  in  common        -    ib. 

SECT.  V.  Right  of  personal  representatives  of  devisee  or 
legatee  of  real  proceeds,  in  preference  to  tes- 
tator's heir  -  368 

SECT.  VI.  When  produce  from  sale  of  land,  resulting  to  tes- 
tator's heir  is  to  be  considered  land  or  mo- 
ney -  369 
1. —  When  there  is  no  disposition  of  the  surplus  370 
2. — When  the  residuary  real  proceeds  are  disposed  of, 

and  part  of  them  lapse  and  result  to  the  heir        ib. 
3. — Election  ...  -     372 

SECT.  VI.  When  the  devisees  of  the  real  produce  take  it  as 

land  or  money  ib. 


CONTENTS. 

CHAPTER  X. 

Of  vested  Legacies,  payable  out  of  the  Personal  Estate         373 

SECT  I.  When  the  gift  of  a  legacy  is  immediate)  and  no 

time  appointed  for  payment  of  it  375 

SECT.  II.  When  the  gift  of  the  legacy  is  immediate,  and 
Repayment  of  it  postponed  \o  a  future  peri- 
od, whether  definite  or  uncertain  -     376 
1. — When  the  legacy  will  be  vested —  ib. 
As  when  directed  to  be  paid  at  twenty-one, — 

Or  ib. 

M  the  end  of  a  particular  term, — Or        -  376-7 
So  soon  as  debts  are  paid, — Or  -       377 

So  soon  as  the  executors  shall  possess  suffi- 
cient assets, — Or  -     ib. 
So  soon  as  particular  lands  are  sold, — Or        ib. 
So  soon  as  the  personal  residue  shall  be  laid 

out  in  the  purchase  of  lands  -    ib. 

2. — When  not  vested  -  378 

SECT.  IF.  Where  there  is  no  immediate  express  gift  of  the 
legacy  distinct  from  the  time  appointed  for 
its  payment  -  383 

FIRST. — When  contingent  from  the  effect  of  condi- 
tional words  -     ib. 
SECOND. — When  vested  in  consequence  of  those  words 
not  having  been  used  by  testators  in  a  con- 
ditional sense  -  387 
1. — JFhen  the  legacy  is  given  to  a  trustee,  parent,  or 
guardian  for  the  legatee  at  a  particular  time, 
and  to  be  managed  or  applied  for  his  mainte- 
nance or  benefit, — Or                                          -     ib. 
2. — Where  the  intermediate  interest  is  not  given  for  the 
use  or  benefit  of  the  legatee,  but  to  another  per- 
son,—                                        -             -  -  392 
During  the  legatees  minority, — Or  -    ib. 
Until  particular  purposes  are  fulfilled, — Or    393 
During  life ; — and  then                                 -     ib. 
IN  REMAINDER  to  the  legatee                           -  394 
3. — Exceptions  to  the  general  rule  of  a  remainder  and 
particular  interest  or  estate  vesting  at  the  same 
time,  upon  the  intention  of  testators                  -  396 

SECT,  IV.  Of  the  vesting  in  interest  and  transmissibility  of 

contingent  executory  bequests  401 

VOL.  I.  C 


xviii  CONTENTS. 

SECT.  V.  Effect  upon  the  vesting  and  devesting  of  lega- 
cies, when  they  are  subject  to  a  limitation 
over  on  the  happening  of  a  particular  event : 
and  0-  403 

1. —  Where  the  gift  is  immediate,  with  a  limitation 
to  "survivors"  upon  the  death  of  any  of  the 
legatees  under  twenty-one,  fyc.  -  -  ib. 

2. — Where  the  event,  upon  which  a  legacy  is  given 
over,  is  so  imperfectly  conceived  and  expressed 
as  to  render  the  testator's  intention  mere  con- 
jecture or  impracticable  to  perform  -  404 

3.  —  Where  the  limitation  over  is,  if  the  legatee  die  be-     .' 
fore  receipt  of  the,  money,  or  before  the  sale  of 
an  estate  -  405 

4. —  Where  the  limitation  over  is  in  case  of  the  death 

of  the  legatee  generally  -  406 

5. —  Where  the  limitation  over  is,  "  in  case  the  legatee 
die  unmarried,  and  without  having  children 
or  issue"  -  -  412 

6. —  When  the  contingencies  upon  which  legacies  are 
limited  over,  tvere  held  not  to  have  happened, 
so  as  to  divest  the  interest  first  given  ;  and  414 

7. — Construction  of  the  words  "payable,"  8/-c.  in  re- 
ference to  the  event  introducing  a  limitation 
over  of  legacies  or  portions,  as,  if  any  of  the 
legatees  die  before  their  shares  become  payable, 
or  payable,  assignable,  and  transferable  417 

FIRST — Of  Legacies  ib. 

SECOND. — Of  Portions         -  41S 

SECT.  VI.  Effect  of  powers  of  appointment  on  the  vesting 

and  devesting  of  legacies  and  portions         420 

I. — Where  the  power  is  merely  to  ascertain  the  shares 

each  legatee  is  to  take  ib. 

2. —  Where  the  gift  depends  upon  an  execution  of  the 

power  -  423 

SECT.  VII.  As  to  vesting  generally  425 

1. — Instances  of  vested  interests  determining  with 

the  lives  of  the  legatees,  and  not  transmissible  ib. 

2. — When  the  word  "survivors"  construed  the  same 

as  u  others"  in  favour  of  vesting  426 

3. —  Where  a  legacy  is  directed  to  be  sunk  in  the  pur- 
chase of  an  annuity  -  _  427 

4. — When  a  legacy  is  given  generally,  "to  be  at  the 

disposal  of  the  legatee"  -  429 

5. —  Where  a  legacy  is  expressed  to  be  given  to  answer 
a  particular  purpose  for  the  benefit  of  the  lega- 
tee, which  purpose  is  disappointed  and  cannot 
take  effect  -  -  -  430 


CONTENTS.  xix 


CHAPTER  XI. 

Of  vested  Legacies  payable  out  of  Real  Estate  431 

SECT.  I.  Where  the  gift  of  a  legacy  or  portion  is  immedi- 
ate.! and  the  payment  postponed  until  the  le- 
gatee attains  twenty  one,,  or  marries     -        -  432 
Legacy  contingent  so  far  as  it  affects  the 
real  estate,  and  vested  so  far  as  regards 
the  personal  estate  -    ib. 

SECT.  II.  When  payment  of  the  legacy  or  portion  is  not 
postponed  on  account  of  the  age  of  the  lega- 
tee or  child,  but  in  regard  to  the  conveni- 
ence of  the  person.,  or  the  circumstances  of 
the  estate  charged  with  it  -  436 

Vested,  although  the  legatee  or  child  die  be- 
fore the  time  of  payment  -    437 


CHAPTER  XII. 

Of  charging  Legacies  upon  the  Real  Estate,  and  of  Exone- 
ration 445 

SECT.  I.  When  legacies  are  given  solely  out  of  the  real  es- 
tate .  446 

SECT.  II.  When  legacies  will,  and  will  not,  be  considered 

effectual  charges  upon  the  real  esaate ;  and  448 
1. —  Where  the  legacies  were  held  to  be  charges  on  the 

real  property       -  -    ib. 

2. — When  not  so  considered  -  454 

3. — Of  charging  and  disposing  of  the  real  estate,  or 
its  produce,  by  codicils  or  paper-writings  not 
attested  according  to  the  Statute  of  Frauds  -  456 

SECT.  III.  Of  exoneration  -     463 

1 . — When  the  personal  estate  is  first  liable  to  pay  debts 

and  legacies  ib. 

2. — When  the  real  estate  will  be  considered  the  primary 

fund  for  those  purposes  -  474 

3. — As  to  the  admission  of  parol  evidence  of  the  testa- 
tor's intention  -  485 

4.-—  When  the  personal  estate  is  exonerated  from  parti- 
cular debts  and  legacies,  and  not  from  debts 
and  legacies  generally  -  ib. 


xx  CONTENTS. 

SECT.  III.  Of  exoneration — continued. 

5 . — When  the  personal  estate  is  not  exonerated  frompar- 

tlcular  debts  and  legacies  -  493 

And  as  to  debts  not  of  the  testator's  own  con- 
tracting -     ib. 

C. —  Where  a  part  of  the  personal  estate  is  specifically 
appropriated  to  pay  legacies  in  exoneration  of 
the  remainder  -  -  497 

7. — As  to  the  exemption  of  the  personal  estate  from 
payment  of  debts  and  legacies,  where  the  lega- 
tee dies  before  the  testator  -  498 

8. —  With  respect  to  the  liability  of  the  real  estate  to 
debts  and  legacies,  when  the  money  has  been 
once  raised,  but  misapplied  ib. 


CHAPTER  XIII. 
Of  legacies  upon  condition  499 

SECT.  I.  Conditions  precedent  and  subsequent  501 
1. — When  the  conditions  are  precedent,  and  distin- 
guished from  limitations  -     ib. 
2. — When  such  conditions  are  impossible  -  505 
3. — When  illegal,  and  of  precedent  conditions  in  re- 
straint of  marriage  -  507 
4. —  Conditions  subsequent  -       513 

SECT.  II.  Performance  of  conditions  ..         -     514 

1. —  When  the  conditions  are  precedent  -       ib. 

A. — Where  the  performance  is  not  within  the 

time  mentioned  in  the  condition  -       ib. 

B. — From  what  period  the  time  for  perform- 
ance is  to  be  computed  518 

C. —  When  the  legatee  has  the  whole  of  life  to 

perform  the  condition  -     519 

D.— Right  of  executors  to  perform  the  condi- 
tion        -  -  520 

E. — Where  legacies  are  given  to  executors  or 

trustees  -  521 

2. —  When  the  conditions  are  subsequent  -  523 

A. —  Where  they  are  impossible  ib. 

B. —  Where  they  are  repugnant  and  illegal       -  524 

C. —  When  they  are  not  to  dispute  the  validity 

of  wills  or  bequests          -  -  530 

D. — Where  the  time  of  payment  of  legacy,  and 

the  condition  to  devest  it  are  inconsistent    531 
3. — When  the  conditions  are  in  restraint  of  marriage, 

whether  precedent  or  subsequent  -     ib. 


CONTENTS.  xxi 

SECT.  II.  Performance  of  conditions — continued. 

A. — Where  the  conditions  require  marriages 

with  consent  ib. 

(A.  1.) — Jit  what  time  consent  ought  to  be 

obtained          -  -     532 

(A.  2.) — And  from  whom  -     534 

(A.  3.) — What  will  be  a  sufficient  consent  539 
FIRST. — Where  the  consent  is  ge- 
neral, i.  e.  to  marry  any  per- 
son ib. 
SECOND. — As  to  retracting  con- 
sent                                        -     541 
THIRD. —  Conditional  assents        542 
FOURTH. — Importance   of  lega- 
tee's supposition  that  there  is 
no  consent,  when  it  is  judicial- 
ly considered  as  given            -  544 
FIFTH. — Of  implied  consents         ib. 
SIXTH. — Effect  of   consents  by 
testators  themselves  to  marri- 
ages, required  by  their  wills  to 
be  had  with  consent  after  their 
deaths             -                               547 
(A.   4.) — Whether   conditions  requiring 
consent  are  fully  performed  by 
first  marriages  with  consent      549 
(A.  5.) — Whether  such  conditions  will  be 
confined  to  the  periods  appoint- 
ed for  payment  of  the  legacies  550 
[a.] — And  the  effect  of  marriage 
without  consent,  when  the  le- 
gatee  afterwards    survives 
the  time  when  the  legacy  is 
payable  •                             -  551 
(A.  C.) — As  to  conditions  requiring  mar- 
riages with  consent  being 
considered  in  terrorem         -  553 
B. — Conditions  requiring  marriages  with  per- 
sons bearing  the  surnames  of  testators     -  558 

SECT.  III.   Respecting  forfeiture  generally  by  non-com- 
pliance with  testamentary  conditions          -  562 

SECT.  IV.  Necessity  of  giving  notice  of  conditions  -  563 

1 . — In  regard  to  personal  bequests  -     ib. 

2. — When  the  devise  is  of  real  estate  -    ib. 


xxii  CONTENTS. 


CHAPTER  XIV. 

Of  the  assent  of  Executors  to,  and  the  payment  and  appro- 
priation of  Legacies  -     564 

SECT.  I.  Of  the  executor's  assent                                         -  565 
1. — The  necessity  and  effect  of  it             -  ib. 
2. — Nature  of  legatee's  interest  prior  to  assent          -  566 
3. — Consequences  of  legatee's  taking  his  legacy  with- 
out assent                                                        -  567 
4. —  JFJien  and  by  whom  assent  may  be  given              -  ib. 
5. —  What  will  be  a  good  assent                                   -  568 
A. —  Where  the  absolute  interest  is  given  to  the 

legatee              -            -  ib. 
B. —  Where  the  fund  is  given  in  succession  570 
C. —  Where  a  partial  interest  is  given  to  an  exe- 
cutor             -             -  ib. 
6. — Presumptive  assent        -                                       -  573 
7. — Conditional  assent  ib. 
8. — The  retracting  of  assent             -                         -  574 

SECT.  II.  Of  the  payment  of  legacies  ib. 

1. — Out  of  what  fund  -    ib. 

2. —  Whether  in  sterling  money  or  in  currency  -    ib. 

3 — By  whom  the  exchange  is  to  be  paid          -  -  577 

4. — Jit  what  time  legacies  to  be  paid  -  579 

A. — When  the  bequest  is  of  a  gross  sum  of  mo- 
ney -     ib. 
B. —  When  of  an  annuity                                   -  .588 
C. — Of  apportionment  of  annuities  and  divi- 
dends in  the  nature  thereof  -  589 
5. — To  whom  to  be  paid  -    ib. 
A.— When  legatee  is  an  infant                        -     ib. 
B. — When  a  married  woman                             -  595 
C. — When  a  lunatic                                   -        599 
D. — When  a  bankrupt  600 
E. — When  legatee  abroad,  and  not  heard  of        601 
6. — As  to  deductions  and  retainer  under  the  Stamp  Acts    ib. 
A. — In  respect  of  what  legacies  liable,  and  the 

quantum  -     ib. 

B. — By  whom  to  be  paid  or  retained  -  605 

C. — At  what  time  payable,  <^c.  -  606 

D. — Retainer  by  executor  -  607 

1. — For  his  own  benefit  ib. 

2. — For  the  benefit  of  another  -      ib. 

7. — Retainer  by  executors  generally  by  way  of  sett  off 

against  legatee's  debt        -  608 

8. — Presumptive  payment  of  legacies  -  609 


CONTENTS.  xxiii 

SECT.  III.  Of  the  appropriation  of  legacies  of  money  or 

stock  -  -         -  611 

1. — Legatee's  right  to  appropriation  -    ib. 

2. — Of  appropriation  in  pais  -  -     ib. 

3. — Of  the  effects  of  appropriation  on  the  fund  itself     612 


CHAPTER  XV. 
Of  marshalling  Assets  in  favour  of  Legatees  -     620 

SECT.  I.  The  marshalling  of  assets  in  favour  of  legatees      622 
I.— Where  the  real  estate  is  devised  subject  to  payment 

of  debts  -     ib. 

2. — When  subject  to  a  charge  of  one  or  more  legacies  624 
3. —  When  charged  with  both  debts  and  legacies         -  626 

SECT.  II.  The  marshalling  of  assets  in  favour  of  legatees, 
where  the  real  estate  is  not  charged  by  the 
will  with  debts  or  legacies,  but  there  is  a 
specific  lien  on  the  real  estate  -  627 

1. —  Where  that  real  estate  is  devised  -    ib. 

2. —  Where  it  descends  -  -  629 

SECT.  III.  The  marshalling  of  assets  in  favour  of  legatees, 
where  the  real  estate  is  neither  charged 
with  debts  nor  legacies,  nor  subject  to  a 
specific  lien,  but  there  is  merely  a  general 
lien  on  the  real  estate,  which  descends  to 
the  heir  -  635 

SECT.  IV.  Exception,  where  the  estate  is  devised ;  for 
where  the  real  estate  is  neither  charged  with 
debts  nor  legacies,  nor  subject  to  a  specific 
lietij  but  there  is  only  a.  general  lien,  and  the 
real  estate  is  specifically  devised  to  a  stran- 
ger or  to  the  heir  taking  as  a  devisee,  assets 
are  not  marshalled  in  favour  of  a  general  le- 
gatee ;  but  the  rule  appears  otherwise  in 
favour  of  a  specific  legatee,  s.  q.  -  636 

. 

SECT.  V.  The  extent  to  which  equity  will  permit  lega- 
tees to  stand  in  the  place  of  specialty  credi- 
tors -  -  -  -  -  639 


xxiv  CONTENTS. 

SECT.  VI.  The  consideration  of  those  legatees  for  whom  a 

Court  of  Equity  will  not  marshal  assets  641 

1 . — Where  the  legatees,  at  the  time  of  their  legacies  be- 
coming due,  have  not  an  established  claim,  &c.        ib. 
2. — Wnere  the  legacies  are  given  to  charities  -     643 

3. — The  rule  respecting  contribution  between  charities 
and  the  next  of  kin,  where  the  residue  is  given 
to  charities,  and  part  of  the  disposition,  being 
within  the  Statute  of  Mortmain,  fails  for  the 
benefit  of  the  next  of  kin  -  -646 

SECT.  VII.  The  mode  in  which  equitable  assets  are  distri- 
buted among  legatees  649 


A  TREATISE 

ON 

THE  LAW  OF  LEGACIES. 


CHAPTER  I. 

Of  Donations  mortis  causa. 

PROPER  Legacies  may  be  classed  under  two  heads ;  viz.  Gene- 
ral and  Specific.  The  former  may  be  denned  the  testamentary  gift 
of  personal  estate  as  of  goods  and  chattels,  or  money  generally. 
The  latter,  the  bequest  of  particular  things  distinguished  from  all 
others  of  the  same  kind,  as  of  money  in  a  bag,  a  piece  of  plate,  or 
a  term  of  years.  There  is  an  improper  kind  of  Legacy,  termed  a 
Donatio  mortis  causa,  which  it  is  proposed  to  consider  in  the 
present  chapter.  The  subject  will  be  discussed  under  the  following 
divisions : 

SECT.  I.  The  description  and  nature  of  a.  Donatio  mortis  causa. 

SECT.  II.  The  circumstances  required  to  constitute  a  Donatio 

mortis  causa. 

l.—Jls  to  the  gift  of  the  Donee. 
£.~The  delivery  of  Possession  ;  and, 

3. — Of  Evidence  admissible  to  prove  the  gift  and  the  suffici- 
ency of  such  evidence. 

SECT.  III.  What  will  defeat  the  Donation  when  originally  good. 

I.  The  description  and  nature  of  a  Donatio  mortis  causa. 

Swinburne(a)  on  the  authority  of  the  Digest(b)  notices  three 
kinds  of  Donations  mortis  causa. 

First,  Where  a  person,  not  terrified  by  the  apprehension  of  any 
present  peril,  but  moved  by  the  general  consideration  of  man's 'mor- 
tality, makes  a  gift.  » 

Secondly,  Where  a  person  moved  by  imminent  danger,  gives  in 
such  a  manner,  that  the  subject  is  immediately  made  his  to  whom 
it  is  given. 

And  thirdly,  Where  a  person,  being  in  peril  of  death,  gives  some- 
thing, yet  not  so  that  it  should  be  presently  his  who  received  it, 
but  in  case  only  the  giver  die. 

It  appears  upon  consideration  of  the  before  mentioned  definitions, 
that  the  third  alone  is  the  proper  donation  mortis  causa  ;  the  other 
two  being  nothing  more  than  pure  irrevocable  gifts  inter  vivos. 
This  also  is  apparent  from  the  definition  of  a  donation  mortis  causa, 
given  by  Justinian  after  the  contest  which'  prevailed  on  the  subject 
had  subsided  : — "  Mortis  causa  donatio  est,  qute  propter  mortis  fit 
suspicionem,  cum  quis  ita  donat,  ut  si  quid  humanitus  ei  contigisset, 
haberet  is  qui  accepit,  sin  autem  supervixisset  is,  qui  donavit,  reci- 

(c)  Swinb.  part  I.  sect.  7.  (6)  Julianust  lib.  17.  Digest. 

VOL.  r.  D 


26  Donations  mortis  causa.  [Cri.  1. 

peret;  vel  si  eum  donationis  ptenituisset,  aut  prior  decesserit  is, 
cui  donatum  sit.  Use  mortis  causa  donationes  ad  exemplum  lega- 
torum  redact®  sunt  per  omnia  :  nam  cum  prudentibus  ambiguum 
fuerat  utrum  donationis  an  legati  instar  earn  obtinere  oporteret, 
et  utriusque  causa3  quoedam  habebat  insignia  et  alii  ad  aliud  genus 
earn  retrahe.bant ;  a  nobis  constitutum  est;  ut  per  omnia  fere  legatis 
connumeretur,  et  sic  procedat  quemadmodum  nostra  constitutio 
earn  formavit,  et  in  summa  mortis  causa  donatio  est,  cum  magis 
sequis  velit  habere  qutim  eum,  cui  donat,  magisque  eum,  cui  donat, 
quim  hseredem  suum."(c) 

With  respect  to  the  nature  of  a  donatio  mortis  causa,  this  kind  of 
amphibious  gift  so  far  resembles  a  legacy  that  it  is  ambulatory  and 
incomplete  during  the  donor's  life ;  it  is  therefore  revocable  by 
him,(rf)  and  subject  to  his  debts  upon  a  deficiency  of  assets. (e)  It 
is  also  liable  to  the  duties  imposed  upon  legacies  by  the  express 
provision  of  the  stat.  36  Geo.  3.  c.  52.  §  7.  But  in  the  following 
particulars  a  donation  mortis  causa  differs  from  a  legacy.  It  is  not 
within  the  jurisdiction  of  the  Ecclesiastical  Court,  nor  is  it  to  be 
possessed  by  the  executor ;  so  that  a  court  of  common  law  has  pro- 
hibited his  proceeding  in  the  Ecclesiastical  Court,  to  recover  the 
subject  from  the  donee. (/)  Neither  does  the  donation  regularly 
fall  within  an  administration,  nor  require  any  act  by  the  executors 
to  constitute  a  title  in  the  donee. (g)  The  reason  is,  that  the 
property  being  vested  in  the  donee  by  delivery  of  the  subject,  liable 
only  to  be  defeated  by  the  donor's  revocation,  or  recovery  or  escape 
from  the  peril  of  death ;  when  none  of  those  events  happen,  the 
title  of  the  donee  is  derived  from  the  donor  during  his  life,  and  not 
by  a  testamentary  act. 

II.  The  circumstances  required  for  the  constitution  of  a  donatio 
mortis  causa  are,  as  before  appears  : 

1.  That  the  gift  be  made  by  the  donor  in  peril  of  death,  or  dur- 
ing his  last  illness,  and  to  take  effect  in  case  only  the  giver  die. (h) 

If  then  the  gift  have  no  relation  to  the  death  of  the  donor,  or 
having  such  a  reference  it  be  general,  that  is,  to  his  decease  at  any 
time,  he  being  at  the  period  of  the  donation  in  no  danger  of  death, 
nor  afflicted  with  any  disorder  which  proved  fatal  to  him,  such  gii't 
cannot? be  supported  as  a  donation  mortis  causa. 

Thus  in  Tate  v.  Hilbert,(i)  A.  having  subsequently  to  his  will  sent 
for  M.  to  his  house,  and  observed  that  he  was  worth  more  than  he 
thought  of,  and  that  his  fortune  was  too  much  for  one  person,  and 
therefore  he  would  give  away  more  than  he  had  disposed  of  by  his 
will,  desired  J.  to  give  him  out  of  his  desk  several  bonds  and  secu- 
rities to  the  amount  of  3000Z.  and  upwards,  which  he  cancelled.  He 
then  told  M.  he  would  give  her  200 J.  and  desired  J.  to  give  him  a 
check  out  of  the  drawer  of  his  desk ;  which  he  having  done,  A.  im- 
mediately filled  it  up,  and  signed  and  gave  it  to  M.',  A.  at  the  same 

(c\  Justin.  Inst.  tit.  7.  De  Donationibus.  (rf)  7  Taunt.  231. 

(f)  Smith  v.  Casen,  mentioned  by  the  reporter  at  the  end  of  Drury  v.  Smith, 
1  P.  Will.  406.  2  Ves.  sen.  434.  (/)  Thompson  v.  Hodgson,  2  Stra.  777. 

(e-)  2  Ves.  sen.  439.     2  Ve.s.  jun.  120.     1  P.  Will.  441. 

(A)  Justin.  Inst.  tit.  7.  De  Don.  4  Burns's  Eccl.  Law.  110.  Pre.  ch.  269.  3.  P. 
Will.  357.  4  Bro.  C.  C.  290.  3  Madd.  185. 

(0  2  Ves.  jun.  Ill,    4  Bro.  C.  C.  286.  S.  C. 


SECT.  II.]  Donations  mortis  causa.  27 

time  gave  J.  a  promissory  note  for  1000/.  It  was  determined,  upon 
questions  whether  the  gifts  of  the  check  and  note  could  be  support- 
ed as  donations  moi'tis  causa,  that  they  could  not.  One  of  the  rea- 
sons for  this  decision  was,  that  the  gifts  of  them  were  not  made  to 
take  effect  infuturo  with  a  view  to  the  donor's  death,  but  in  prce- 
senti  and  irrevocably. 

But  it  is  not  necessary  for  the  donor  to  expressly  declare  that  the 
gift  was  made  conditionally,  viz.  to  take  effect  only  in  the  event  of 
his  death ;  for  if  the  gift  be  made  during  his  last  illness,  the  law  in- 
fers the  condition  that  the  donee  is  only  to  hold  the  subject  in  case 
the  donor  die  of  that  indisposition. 

Accordingly  in  Gardiner  v.  Parker,(k)  A.  being  confined  to  his 
bed,  gave  to  B.  a  bond  for  1800?.  two  days  before  his  death,  in  the 
presence  of  a  servant,  saying,  "  There  take  that  and  keep  it."  The 
question  was  between  the  donee  and  executors  of  A.  And  Sir  John 
Leach,  V.  C.  decided  in  favour  of  the  donation,  observing,  that  the 
doubt  originated  in  the  donor  not  having  expressed  that  the  bond 
was  to  be  returned  if  he  recovered ;  but  that  the  bond  being  given 
in  the  extremity  of  sickness,  and  in  contemplation  of  death,  the  in- 
tention of  the  donor  was  to  be  inferred  that  the  bond  should  be  hoi- 
den  as  a  gift  only  in  case  of  his  death  ;  and  that  if  a  gift  be  made  in 
the  expectation  of  death,  there  is  an  implied  condition  that  it  is  to 
be  held  only  in  the  happening  of  that  event. 

So  also  in  a  prior  case  of  Law  son  v.  Lawson,(l)  the  testator  being 
languishing  on  his  death  bed,  delivered  to  his  wife  a  purse  of  gold, 
containing  100  guineas,  and  bid  her  apply  it  to  no  other  use  but  her 
own,  and  the  transaction  was  supported  as  a  donation  mortis  causa. 

It  is  no  objection -to  this  species  of  donation,  that  the  gift  was  not 
made  to  the  donee  free  from  incumbrance,  but  charged  with  the  per- 
formance of  a  particular  purpose.  To  this  effect,  Eyre,  Lord  Com- 
missioner, expressed  himself  in  the  case  of  Blount  v.  Burrow,(m]  as 
reported  by  Mr.  Brown,  and  there  seems  to  be  no  reason  why  the 
donee  should  not  have  the  surplus  money,  if  any  remained  after  the 
special  purpose  was  answered. 

2.  The  next  requisite  to  constitute  a  donation  mortis  causa  is  ac- 
tual delivery  of  the  subject  to  or  for  the  donee  in  cases  where  such 
a  delivery  can  be  made  ;  it  is  a  consequence  of  that  proposition. 

That  if  the  delivery  be.  incomplete,  and  only  rest  in  the  intention 
of  the  donor,  the  proposed  donation  cannot  be  supported. 

Thus  in  Bryson  v.  Brownrigg,(n]  A. 'by  his  will,  dated  the  4th  of 
December,  1776,  disposed  of  all  his  real  and  personal  estates  in  trust 
for  his  wife,  Mice,  and  his  children,  Esther  and  Mary,  and  appoint- 
ed his  wife  and  the  trustees  executors.  The  testator  died  in  1788, 
leaving  his  two  daughters,  his  only  children,  both  above  the  age  of 
twenty-one,  and  married  ;  Mary  died  ;  and  the  bill  was  filed  by  her 
husband  and  administrator  and  their  only  child,  against  the  testator's 
widow,  Alice  Brmvnrigg,  and  the  surviving  trustee,  and  the  testator's 
.other  daughter,  Esther,  and  her  husband,  to  have  the  will  establish- 
ed, and  an  account,  &c.  The  answer  stated  a  gift  by  the  testator 
in  March,  1787,  to  Esther,  then  unmarried,  of  200/.  (viz.)  1001.  due 
to  him  by  bond,  and  100/.  by  mortgage  ;  sums,  that  according  to  the 

(*)  3  Madd.  184      (/)  1  P.  Will.  441.       (iw)  4  Bro.  C.  C.  75.       (n)  9  Ves,  1, 


28  Donations  mortis  causa.  [Cu.  I. 

answers,  were  so  given  to  her  as  an  equivalent  for  100J.  which  Mary 
received  under  the  will  of  her  grandfather,  and  for  another  sum  of 
100Z.  which  Mary  or  her  husband  received  from  the  testator  upon 
their  marriage  ;  and  the  interest  of  such  gift  having  been  from  the 
time  thereof  accounted  for  and  paid  to  Esther  by  the  testator  in  his 
life-time,  the  defendant,  Alice  Brownrigg,  paid  the  principal  and  in- 
terest received  on  the  said  bond  and  mortgage  to  her  (Esther,)  and 
claimed  to  be  allowed  those  sums,  as  paid  to  her  daughter.  The 
plaintiffs  disputing  those  payments,  the  defendants,  Alice  Brownrigg 
and  Esther,  were  examined  upon  interrogatories ;  and  by  their  exa- 
minations stated,  that  the  mortgage  and  bond  were,  in  1786,  or  early 
in  1787,  given  by  the  testator  to  his  daughter  Esther  in  the  follow- 
ing manner :  the  testator  having  frequently  declared  his  determina- 
tion to  give  200Z.  to  his  daughter  Esther,  to  place  her  upon  an  equa- 
lity with  his  eldest  daughter  Mary,  (who  had  on  her  marriage  recei- 
ved the  like  sum,)  selected  the  two  securities  in  question  for  that 
purpose,  and  Alice  Brownrigg,  by  his  direction,  took  them  out  of  a 
drawer,  in  which  they  lay  with  other  securities  and  papers  of  the 
testator,  and  she  by  the  like  direction  laid  them  distinctly  and  by 
themselves  in  another  drawer,  for  and  as  the  property  of  Esther,  then 
a  minor,  to  whom  the  same  were  pointed  out,  and  were  several  times 
afterwards  mentioned  and  spoken  of  as  her  own  by  the  testator,  who, 
in  giving,  and  afterwards  speaking  of  these  securities  to  the  exami- 
nants,  said,  as  the  securities  were  good,  the  money  had  better  remain 
upon  them  until  Esther  should  marry.  At  the  death  of  the  testator 
the  two  securities  remained  by  themselves,  and  separately  from  his 
other  securities,  in  a  lower  drawer  of  his  bureau,  of  which  Alice 
Brownrigg  always  kept  the  key.  The  interest  which  arose  on  them 
in  the  testator's  life-time  subsequently  to  such  gift,  was  by  his  direc- 
tion paid  to  Esther,  as  her  own  money  ;  and  Alice,  after  the  decease 
of  the  testator,  at  the  request  of  Esther,  (who  attained  her  age  of 
twenty-one  years  a  few  days  after  the  testator's  death)  continued  to 
keep  the  two  securities  for  her  ;  and  soon  after  her  death,  at  her  pre- 
vious request,  viz.  on  the  13th  of  February,  1789,  called  in  the  money 
and  paid  it  to  her  husband  John  Croft.  The  master  allowed  the  claim; 
upon  which  an  exception  was  taken  to  his  report ;  and  in  support  of 
the  report  the  delivery  of  the  securities  was  contended  to  be  good 
and  effectual  as  donations  mortis  causa.  But  by  Sir  William  Grant, 
M.  R.  "has  it  ever  been  determined,  that*  the  mere  delivery  of  the  x 
security  passes  the  interest  of  the  money  9  A  donatio  mortis  causa £ 
has  something  in  the  nature  of  a  legacy.  But  I  do  not  see,  suppos- 
ing delivery  would  do,  how  this  can  be  called  so,  shifting  it  from  one 
drawer  to  the  other.  It  remains  just  where  it  was,  except  that  it 
is  in  a  different  drawer,  and  separated  from  other  papers.  What 
could  she  have  done  if  he  chose  to'  make  use  of  these  securities  9  It 
depends  all  upon  his  mental  intention.  This  is  not  enough.  I  cannot 
think  it  the  mode  in  which  that  kind  of  property  can  be  conveyed." 
The  exception  was  therefore  allowed. 

Another  instance  of  imperfect  delivery  occurred  in  the  case  of 
Bunn  v.  Markham.(o)  That  was  an  action  of  trover,  brought  to 
recover  from  the  defendants,  who  were  the  executors  of  Sir  Jervase 

(o)  7  Taunt  224. 


SECT.  II.]  Donations  mortis  causa.  29 

Clifton,  bart.  certain  India  bonds,  bank  notes,  guineas,  an  iron 
chest,  and  the  boxes  and  envelopes  in  which  these  securities  and 
money  had  been  contained.  The  cause  was  tried  at  Guildhall,  at 
the  sittings  after  Trinity  Term,  1816,  before  Gibbs,  C.  J.  The 
evidence  was,  that  Sir  Jervase  Clifton  being  of  an  advanced  age, 
and  confined  to  his  bed,  and  having  by  his  will,  dated  in  1814,  be- 
queathed all  his  cash,  notes,  and  India  bonds,  to  his  executors,  to  be 
sold  and  invested  in  trust  for  his  daughter  (the  wife  of  the  defendant 
Markham)  and  her  children,  on  the  24th  of  March,  thinking  him- 
self near  his  end,  sent  for  his  solicitor,  (the  defendant  Jamsori)  to 
make  a  codicil  to  his  will,  whose  partner  Leeson  attended  him,  and 
prepared  a  codicil,  by  which  the  testator  gave  to  the  plaintiff  Mary 
Sunn,  otherwise  Clifton,  (who  had  for  more  than  thirty  years  coha- 
bited with  him,  and  was  the  mother  of  the  other  plaintiff)  2000Z.  and 
to  his  and  her  daughter,  the  plaintiff,  Rebecca  Clifton,  the  like  sum 
of  2000Z.  While  the  solicitor  was  in  the  house,  the  testator  taking 
some  keys  from  a  basket  which  he  always  kept  by  his  bed-side,  de- 
livered them  to  John  Bunn  Clifton  (his  son  by  the  one,  and  the 
brother  of  the  other  plaintiff,)  Leeson,  and  a  tenant  named  Sandby,  in 
whom  he  reposed  great  confidence,  and  directed  them  to  go  to  an  iron 
chest  in  which  he  kept  his  valuables,  fixed  in  the  wall  of  another  room 
in  his  house,  and  to  bring  from  it  whatever  property  they  found  there. 
They  brought  three  parcels,  and  laid  them  on  his  bed,  one  of  which 
contained  three  India  bonds,  value  1500Z.  and  bank  notes,  together 
of  the  value  of  2225J. ;  another  contained  1100Z.  in  bank  notes,  and 
the  other  479  guineas,  the  value  of  the  whole  being  3829Z.  The 
testator  upon  being  informed  that  the  amount  was  about  170Z.  short 
of  4000Z.  said  it  should  be  made  up  to  40001.  even  money,  and  di- 
rected for  the  plaintiffs,  2000L  for  each ;  but  the  complement  was 
never  in  fact  added.  On  the  box  which  contained  the  2225Z.  Mr. 
Bunn  Clifton  had  before,  on  the  7th  of  March,  by  the  testator's  di- 
rection, written  "  For  Mrs.  and  Miss  Clifton,  504Z."  The  other  two 
parcels,  Mr.  Bunn  Clifton,  by  his  father's  direction,  on  the  present 
occasion  sealed  up  and  wrote  on  them  the  words,  "  For  Mrs.  and  Miss 
Clifton"  The  testator  charged  Mr.  Clifton,  that  after  his  decease, 
he  should  deliver  these  to  his  mother  and  sister,  the  plaintiffs.  Mr. 
'Clifton,  by  his  father's  direction,  replaced  this  property  in  the  iron 
chest,  locked  it,  and  brought  back  the  keys,  which  Leeson,  by  the 
testator's  direction,  sealed  up  in  a  paper  parcel,  and  wrote  thereon, 
"To  be  delivered  to  Mr.  Jamson  after  Sir  Jervase  Clifton's  decease." 
The  keys  were  then  again  put  into  the  basket,  by  the  testator's  bed- 
side. The  plaintiffs  were  not  then  in  the  house,  but  upon  Mrs. 
Clifton's  arrival  some  days  after,  the  testator  entrusted  to  her  the 
keys  of  the  iron  chest,  and  told  her  that  the  contents  were  to  be  her's 
and  her  daughter's,  and  charged  her  to  keep  the  keys ;  and  many 
times  afterwards,  and  particularly  on  the  27th  of  April,  and  on  the 
occasion  of  his  making  a  farther  codicil,  he  declared  that  the  money 
in  the  iron  chest  was  for  the  plaintiffs.  After  this  time,  the  testator 
frequently  expressed  anxiety  respecting  the  keys  of  the  iron  chest, 
and  required  them  to  be  shown  him,  and  on  learning  that  they  had 
been  obtained  from  Mrs.  Clifton  by  his  eldest  son,  he  expressed 
great  displeasure,  and  caused  the  keys  to  be  replaced  in  the  basket 


30  Donations  mortis  causa.  [Cn.  I. 

of  keys,  which  was  always  kept  in  his  bed-room.  The  parcels  and 
the  property  therein,  continued  in  the  same  state  until  after  the 
testator's  decease,  which  happened  a  year  afterwards.  Gibbs,  C.  J. 
left  to  the  consideration  of  the  jury  the  probability  that  the  intend- 
ed 4000/.  of  which  the  testator  had  spoken,  was  the  same  sum  de- 
signated by  the  codicil  of  the  24th  of  March;  and  also  the  question, 
whether  the  testator  meant  to  make  this  an  absolute  gift  to  the  plain- 
tiffs, or  only  provisional,  upon  the  probability  that  he  might  not  sur- 
vive long  enough  to  complete  the  codicil.  The  jury  found,  that  this 
was  not  the  4000Z.  designated  by  the  codicil,  and  that  the  testator 
intended  it  as  an  absolute,  and  not  a  provisional  gift.  His  lordship 
reserved  the  point,  whether  there  had  been  in  this  instance  such  a 
delivery  of  the  property  as  was  sufficient  to  constitute  a  donatio 
mortis  causa  ?  And  the  opinion  of  the  Court  of  Common  Pleas  was 
thus  delivered  by  Gibbs,  C.  J.  "  The  two  grounds  on  which  the 
present  application  is  made,  have  a  different  object  in  view.  The 
one  is,  that  the  jury  did  not  draw  a  correct  conclusion  from  the  facts 
submitted  to  them ;  the  other  is,  to  enter  a  nonsuit,  on  the  ground 
that  the  facts,  taking  them  to  be  proved,  do  not  make  out  the  title 
of  the  plaintiffs.  The  first  question  stands  principally  on  the  evi- 
dence of  Mr.  Bunn  Clifton.  If  his  memory  has  not  failed  him,  the 
verdict  is  certainly  right,  and  his  credit  and  character  stand  unim- 
peached.  As  to  the  other  points,  it  is  agreed  on  all  hands,  that  a 
donatio  mortis  causa  cannot  exist  without  a  delivery.  The  facts  of 
this  case  are,  that  the  property  was  taken  out  of  a  chest  of  the  testa- 
tor, looked  over  by  him,  and  seated  up  in  three  different  parcels : 
being  so  sealed,  he  declares  that  it  is  intended  for  the  witness's  mo- 
ther and  sister,  and  directs  that  it  shall  be  given  to  them  after  his 
decease ;  there  is  no  other  delivery  but  that :  it  is  replaced  in  the 
same  chest,  and  the  keys  are  re-delivered  to  the  testator,  or  by  him 
to  persons  whom  he  always  nominates  as  his  servants  for  that  effect, 
and  he  expresses  a  continual  anxiety  about  the  custody  of  the  keys. 
The  question  is,  whether  this  be  a  sufficient  delivery  to  make  a  do- 
natio mortis  causa  ;  and  we  are  clear  that  it  is  not.  It  is  argued  by 
the  counsel  for  the  plaintiffs,  that  there  needs  not  to  be  a.  continu- 
ing possession  in  the  donee,  but  that  the  donor  may  resume  the  pos- 
session without  determining  the  gift.  There  is  no  case  which 
decides  that  the  donor  may  resume  possession,  and  the  donatio  con- 
tinue. Smith  v.  Smith(p)  is  a  very  confused  case.  Where  the 
master  died,  does  not  appear*  inasmuch  as  it  is  stated  that  the  master 
delivered  the  key  of  his  rooms  to  his  servants  when  he  went  out  of 
town ;  probably  he  died  in  the  country,  and  then  the  delivery  last 
made  to  his  servant  would  be  a  continuing  of  possession  up  to  his 
decease.  But  all  the  cases  agree,  that  if  the  donor  resume  the  pos- 
session, it  ends  the  gift.  Lord  Hardwicke  expressly  so  holds,.in  Ward 
v.  Turner,  where  it  suited  the  purpose  of  the  counsel  to  argue,  that  if 
the  donor,  after  making  a  complete  delivery,  receives  back  the  arti- 
cle, the  donation  remains  perfect.  Lord  Hardwicke  immediately 
denied  that  proposition,  and  held,  that  if  the  possession  of  the  donee 
do  not  continue,  the  gift  is  at  an  end.  Seeing,  therefore,  that  it  is 
in  the  power  of  the  donor  at  any  time  to  revoke  the  donation  before 

(/»)  2  Stra.  955. 


SECT.  II.]  Donations  mortis  causa.  31 

his  death,  and  that  there  must  be  a  continuing  possession  of  the  donee 
after  the  delivery  to  the  time  of  the  donor's  death  ;  seeing  too,  here, 
that  there  is  neither  a  delivery,  nor  a  continuing  possession,  we  are 
of  opinion  that  no  interest  in  this  property  passed  to  Mrs.  and  Miss 
Clifton  under  the  supposed  delivery  to  the  son,  for  the  use  of  his  mo- 
ther and  sister  ;  and  that  therefore  a  nonsuit  must  be  entered." 

In  the  last  case  was  cited  that  of  Spratley  v.  Wilson,(q)  in  which 
Gibbs,  C.  J.  considered  actual  delivery  unnecessary,  holding  the  do- 
nation sufficient,  where  a  person  in  extremis,  said,  "  I  have  left  my 
watch  at  Mr.  R's,  at  Charing  Cross,  fetch  it  away,  and  I  will  make 
you  a  present  of  it."     But  his  lordship  desired  that  the  case  might 
not  be  mentioned,  since  immediately  after  the  trial,  he  perceived  that 
what  he  had  improvidently  thrown  out,  could  not  be  maintained,  be- 
cause a  delivery  was  wanting,  and  he  had  accordingly  written  a  re- 
mark to  that  effect,  at  the  end  of  his  own  note  of  the  case.  Again, 
/'  In  Miller  v.  Miller, (r)  the  testator  verbally  gave  to  his  wife,  two~\ 
/  days  before  his  death,  his  coach  and  two  horses,  in  the  presence  of  \ 
three  witnesses,  but  no  delivery  was  made.    Sir  Joseph  Jekyll  deci- 
ded that  the  gift  was  imperfect  as  a  donation  mortis  causa,  since 
\  the  subjects  were  not  delivered  during  the  life  of  the  testator. 

But  although  the  act  of  delivery  by  the  donor  be  complete,  still  it 
may  be  insufficient,  from  the  nature  of  the  property  intended  to  be  gi- 
ven, to  entitle  the  donee  to  such  property  as  a  donation  mortis  causa. 

This  may  happen  in  instances  of  symbolic  deliveries  of  possession. 
And  it  may  be  considered  as  settled,  that  where  the  thing  delivered 
in  lieu  of  the  principal,  in  cases  where  the  principal  itself  cannot  be 
delivered  in  specie,  is  mere  evidence  of  the  subjects  existence,  and 
no  property  in  it  is  transferred  to  the  donee  by  the  symbolic  delive- 
ry, or  at  the  utmost  only  a  right  of  action,  such  a  delivery,  with  a 
view  to  constitute  a  donation  mortis  causa,  cannot  be  established. 

Upon  this  principle,  Lord Hardwicke  decided  in  Ward\.  Turner(s) 
that  delivery  of  receipts  for  South  sea  annuities,  was  not  such  a  deli- 
very of  the  annuities  themselves  of  which  they  were  capable,  and  that 
therefore  the  gift  of  them  as  an  intended  donation  mortis  causa,  could 
not  be  supported.  But  he  inclined  to  the  opinion,  that  if  a  transfer 
of  the  annuities  had  been  made  to  the  donee  the  gift  would  have 
operated  as  such  a  donation.  The  case  was  in  substance  to  the  fol- 
lowing effect : 

W.  as  executor  of  M.  claimed  specific  parts  of  the  personal  estate  \ 
of  .F.  and  also  South  Sea  annuities  as  donations  mortis  causa  made 
to  M.  in  his  life-time  by  F.     The  manner  in  which  these  gifts  were  / 
proved  to  have  been  made,  was  as  follows :  "  I  give  you  M.  those 
papers,  which  are  receipts  for  South  Sea  annuities, .  and  will  serve 
you  after  I  am  dead."     "  I  give  you  M.  all  the  goods  and  plate  in 
this  house ;"  and  a  witness  swore  that  F.  declared  to  him  and  ano- 
ther person,  who  alone  were  present,  that  he  (F.)  gave  to  M.  all  his 
household  goods,  money,  arrears  of  rent,  and  every  thing  which  should 
be  found  in  his  house,  except  his  sword,  gun  and  books.  Lord  Hard- 
wicke determined  that  the  gift  of  the  general  personal  estate  of  F.   I 
could  not  be  supported,  there  being  no  pretence  of  any  sort  of  de-/ 
livery.  And  with  respect  to  the  South  Sea  annuities,  his  lordsKlpT 

(y)  1  -Holt  10.    (r)  3  P.  Will.  356.  35&     («)  2  Ves.  sen.  431.  see  also  3  Madd.  185. 


32  Donations  mortis  causa.  [CH.  I. 

after  taking  a  minute  and  accurate  view  of  the  Roman  and  Civil 
laws  on  this  subject,  and  of  all  the  cases  then  decided  in  the  Court  of 
Chancery,  adjudged,  that  according  to  each  law,  delivery  of  the  thing 
given,  was  necessary  to  an  effectual  donation  mortis  causa,  and 
therefore  that  the  delivery  of  the  receipts  for  South  Sea  annuities, 
was  not  such  a  delivery  of  the  thing  given,  as  to  effectuate  the  gift, 
and  compared  it  to  the  case  of  a  mortgage  where  a  separate  receipt 
is  given  for  the  consideration  money,  in  which  case  delivery  of  the 
receipt  would  not  have  been  a  good  delivery  of  the  possession,  nor 
given  the  mortgage  as  a  donation  mortis  causa  by  force  of  that  act. 
His  lordship  was  therefore  of  opinion,  that  the  gift  of  the  South  Sea 
annuities  was  merely  legatory,  and  amounted  to  a  nuncupative  will, 
which  was  void  by  the  Statute  of  Frauds  and  Perjuries.  But  he  in- 
timated that  an  actual  transfer  of  the  stock  would  have  been  suffi- 
cient to  effectuate  the  intended  donation. 

So  also  in  Miller  v.  Miller,(t)  the  delivery  of  a  note  for  100?.  to  the 
testator's  wife,  it  being  neither  a  cash  note,  nor  payable  to  bearer, 
was  held  insufficient  to  pass  to  the  donee  the  money  as  a  donation 
mortis  causa ;  and  upon  this  principle  :  that  such  a  note  was  merely 
a  chose  in  action,  and  must  be  sued  for  in  the  names  of  the  execu- 
tors, end  that  no  property  in  it  passed  by  the  delivery. 

A  check  which  is  a  mere  order  for  the  payment  of  money,  and  only 
imparts  by  delivery  an  authority  to  receive  the  sum  mentioned  in  it, 
cannot  be  the  subject  of  a  donation  mortis  causa  ;  for  by  the  death 
of  the  donor  the  authority  determines,  and  the  right  to  the  money 
becomes  vested  in  the  executor  or  administrator. (w) 

It  appears,  however,  that  a  check  may  be  so  drawn  as  to  entitle 
the  donee  to  it,  after  the  drawer's  death,  in  the  nature  of  a  donation 
mortis  causa. 

Thus  in  Lawson  v.  Lawson,(x)  A.  during  his  last  illness,  drew  a 
bill  upon  a  goldsmith  for  the  payment  of  WOl.  to  B.  the  wife  of  A. 
with  a  written  endorsement  that  the  money  was  "  to  buy  her  mourn- 
ing," and  the  bill  was  delivered  to  B.  It  was  determined  that  she  was 
entitled  to  the  money.  The  principle  of  the  decision  was  considered 
by  Lord  Rosslyn  to  be  this  :  "  That  taking  the  whole  bill  together  it 
was  an  appointment  of  the  money  in  the  goldsmith's  hands  to  the  ex- 
tent of  100Z.  for  the  particular  purpose  expressed  in  the  written  en- 
dorsement ;  a  purpose  which  necessarily  supposed  the  appointor's 
death."(i/) 

It  seems  that  probate  of  the  above  bill  was  unnecessary,(z)  for  a 
gift  when  once  declared  to  be  a  donation  mortis  causa,  or  in  the  na- 
ture of  one,  takes  effect  from  the  delivery  ;  so  that  the  donee  claims 
the  subject  as  a  gift  from  the  donor  in  his  life-time,  and  not  under  a 
testamentary  act ;  and  the  appointment  in  the  last  case  operatecfas 
a  declaration  of  trust  upon  the  executor  of  A. 

Notwithstanding  the  necessity  of  delivery  to  constitute  a  donation 
mortis  causa  made  by  parol,  it  is  an  unsettled  question  whether  such 
kind  of  gift,  appearing  in  writing,  without  delivery  of  the  subject, 
can  be  supported.  By  the  Roman  and  civil  law  a  gift  mortis  causa 
might  be  made  in  writing  ;(a)  and  in  allusion  to  that  law,  as  it  is  pre- 

(0  3  P.  Will.  356.    («)  4  Bro.  C.C.  291.    (*)  1  P.  Will.  441.  (y)  2  Ves.  jun.  121. 
(z)  1  P.  Will.  441.  (a)  Dig,  lib.  39.  tit,  6. 1. 28.  2  Ves.  sen.  440. 


SECT.  II.]  Donations  mortis  causa.  33 

sumed,  Lord  Rosslyn  in  Tate  v.  Hilbert,(b)  inclined  to  think  that  by 
the  law  of  England  such  a  donation  might  be  made  by  deed  or  writing 
without  delivery  of  the  things  contained  in  it.  Lord  Hardwicke  also 
seems  to  have  been  of  opinion,  in  Ward  v.  Turner,(c)  and  Johnsonv. 
Smith,(d )  that  a  gift  mortis  causa  might  be  by  deed  without  actual 
delivery  of  its  contents.  But  it  must  be  noticed  in  regard  to  the 
Roman  law,  that  it  is  so  far  only  of  authority  as  it  has  been  received 
and  allowed  in  this  country ;  and  it  appears  that  the  civil  law  has 
only  been  followed  in  cases  upon  the  present  subject  so  far  as  the 
donations  were  accompanied  with  delivery.  That  the  Ecclesiastical 
Court  has  considered  a  deed  or  writing,  made  not  in  the  form  of  a 
will,  and  continuing  in  possession  of  the  deceased,  testamentary,  and 
therefore  not  operating  as  a  gift  mortis  causa,  appears  from  two  cases 
stated  by  Lord  Hardwicke  in  Ward  v.  Turner. (e] 

The  first  case  was  Ousley  v.  Carrol,  in  June  1722,  in  the  Pre- 
rogative Court,  before  Dr.  Bettesworth.  A  writing  was  left  in  the 
presence  of  three  witnesses,  not  in  the  form  of  a  will  but  a  deed ; 
viz.  "  I  have  given  and  granted,  and  give  and  grant  to  my  five 
sisters  and  children  of  the  sixth,  their  executors  or  administrators,  in 
case  they  survive  me,  all  my  goods  and  chattels,  and  real  and  personal 
estate,  and  all  which  I  may  claim  in  right  of  rt\y  own,  whether  alive 
or  dead."  The  dispute  was  by  a  person  claiming  as  his  wife  (but 
who  had  been  divorced)  insisting  that  the  above  writing  was  no  will 
but  a  deed  of  gift  mortis  causa  ;  and  the  Ecclesiastical  Judge  was 
of  opinion,  that  it  was  testamentary  ;  and  probate  was  granted,  from 
which  there  was  no  appeal. 

The  second  case  was  Shargold  v.  Shargold,  cited  in  the  last, 
upon  a  deed  of  gift  by  Dr.  Pope  not  to  take  place  until  his  death ; 
and  six-pence  was  delivered  by  way  of  symbol  to  put  the  grantee  in 
possession.  The  deed  was  pronounced  for  as  a  will,  not  as  a  dona- 
tion mortis  causa. 

That  such  instruments  are  considered  testamentary  by  the  tem- 
poral courts,  and  proper  to  be  proved,  appears  from  the  case  of 
Rigden  v.  Vallier^f}  and  the  authorities  there  referred  to. (g)  And 
it  seems  a  consequence  from  the  above  observations  that,  as  probate 
is  not  only  unnecessary  but  improper  in  instances  of  valid  gifts  mor- 
tis causa,  such  donations  cannot  be  made  by  mere  deed  not  deliver- 
ed, nor  by  a  writing  referring  to  the  donor's  death  unaccompanied 
by  a  delivery  of  the  subjects  of  the  gifts.  Probably  the  law  upon 
this  subject  may  be  stated  to  the  following  effect : 

1 .  That  since,  without  delivery,  a  donation  mortis  causa  made  by 
parol  would  be  imperfect,  so  k  would  be  if  made  in  writing  without 
such  tradition. 

2.  But  that  if  the  writing  were  a  deed  and  delivered  to  the  donee  ; 
then  as  deh' very  of  a  bond  is  a  good  donation  mortis  causa  of  the 
money  secured  by  it,(/t)  so  it  should  seem  that  delivery  of  the  deed 
would  be  an  equally  valid  donation  of  the  property  contained  in  it. 
But  that, 

3.  If  the  deed  were  kept  in  the  possession  of  the  donor,  and  so 
found  at  his  death,  not  only  a  delivery  in  his  lifetime  would  be  want- 
ed 2Ves.  jun.  120.     (c)  2  Ves.  sen.  440.     W)  iVes.  sen.  314.     (e)2  Ves.  sen.  440, 

(/)  2  Ves.  sen.  252.  (^)  Ibid.  25&.  (A)  See  infra*  p.  36. 

VOL.  I.  E 


34  Donations  mortis  causa.  [On.  1. 

ing,  an  act  essential  to  this  species  of  donation,  but  the  deed  as  a 
deed  would  be  defective  ;  and  no  delivery  of  it  having  been  made, 
the  gift  of  course  cannot  relate  to  any  such  during  the  donor's  life. 
The  instrument,  therefore,  must  of  necessity  be  considered  testamen- 
tary in  order  to  give  it  any  effect,  and  it  cannot  operate  as  a  dona- 
tion mortis  causa.  In  such  a  case  probate  by  the  ecclesiastical 
court  will  be  necessary. 

If,  however,  from  the  nature  of  the  instrument  the  property  in  it 
be  capable  of  transfer  by  delivery,  it  is  a  consequence  that  such 
instrument  may  be  the  subject  of  a  donation  mortis  causa.  Accord- 
ingly it  has  been  determined  that  such  a  donation  of  bank  notes  is 
effectual. 

This  decision  was  made  in  the  case  of  Miller  v.  Miller,  before  re- 
ferred to ;  for  there  the  testator,  besides  the  gift  to  his  wife  of  the 
note  for  100Z.  which  was  neither  a  cash  note  nor  payable  to  bearer 
as  before  observed, (i)  gave  to  hef  two  bank  notes  of  300/.  each  in 
the  following  manner  :  he  took  from  his  pocket  book  the  notes,  and 
gave  them  to  his  servant,  directing  him  to  deliver  them  to  his  wife, 
who  was  then  present.  Sir  Joseph  Jekyll  decided  that  the  bank 
notes  were  well  given  as  a  donation  mortis  causa. 

That  case  was  followed  by  Lord  Thurlow  in  Hillv.  Chapman,(k) 
in  which  A.  in  1779  delivered  his  will  to  B.  (one  of  his  executors, 
and  a  receiver  of  his  rents,)  declaring  that  there  was  something 
in  it  for  him  which  would  reward  him  for  the  trouble  he  had  often 
given  him,  and  also  for  the  trouble  he  would  have  in  the  execution 
of  the  will  beyond  his  co-executors,  in  consequence  of  his  knowledge 
of  A's  affairs,  to  all  of  whom  he  had  bequeathed  equal  legacies.  At 
the  time  of  the  delivery  of  the  will  to  B.  there  was  pinned  to  it  a 
note  or  paper  addressed  to  B.,  in  which  was  inclosed  a  bank  note  of 
501.  The  will  with  the  annexed  paper  and  inclosure  was  frequently 
returned  to  .#.,  and  as  often  re-delivered  to  B.;  but  at  the  last  re- 
delivery,  which  was  in  November  1784,  A.  told  B.  that  he  had  not 
done  enough  for  him ;  and  observed,  that  he  had  doubled  the  amount 
of  what  was  inclosed  in  the  paper.  And  on  a  subsequent  occasion, 
A.  said  to  B.,  "  Now  I  have  made  another  will,  the  old  will  is  of  no 
use  to  me,  but  you  must  take  care  of  it,  by  reason,  you  know,  there 
is  something  with  it  for  yourself;  as  soon  as  I  am  dead,  open  the 
paper  and  take  it  out."  He  also  added,  "  that  he  (.#.)  gave  it  to 
him  in  that  manner,  to  prevent  his  daughter  knowing  how  much  he 
gave  him."  When  the  will  was  last  delivered  to  B.  there  was  pin- 
ned to  it  a  paper,  directed  "  For  B.  the  8th  of  November  1784,"  which 
contained  two  bank  notes  of  50Z.  each,  and  the  new  will  of  A.  to 
which  he  alluded  as  above,  was  dated  the  15th  of  January  1785, 
and  bequeathed  to  his  executors  50Z.  a  piece,  one  of  whom  was  B., 
and  to  whom  A.  gave  the  further  sum  of  101.  for  mourning.  The 
whole  of  this  statement  was  made  by  B.  before  the  master  upon 
whose  report  it  appeared,  and  the  question  was,  whether  B.  was  en- 
titled to  the  two  bank  notes  as  a  donation  mortis  causal  and  Lord 
Thurlow,  C.  said  he  thought  the  gift  good  as  such  donation. 

It  does  not  appear,  from  the  report  of  the  last  case,  whether  the 
final  delivery  of  the  will  and  the  paper  billet  annexed  to  it  was  dur- 

(j)  Seefftt/irc,  p.  32.  (A:)  2  Bro.  C.  C.  612.  Ed.  by  Belt. 


SECT.  II.]  Donations  mortis  causa.  35 

ing  ffls  last  illness  ;  it  must,  however,  be  presumed  to  have  been  so, 
or  the  gift  would  be  destitute  of  one  of  the  essential  requisites  con- 
stituting a  donation  mortis  c'ausa.(l) 

Upon  the  same  principle  that  bank  notes  are  proper  subjects  for 
donations  mortis  causit,  it  would  seem  that  government  securities  for 
money  will  be  so  considered. 

On  this  ground  the  opinion  of  the  Master  of  the  Rolls  in  Jones  v. 
Selby  (m)  may  be  supported  so  far  as  regards  the  capability  of  a  gov- 
ernment tally  to  be  the  subject  of  a  donation  mortis  causa.     Lord 
Cowper,  on  appeal  from  his  Honour's  decree,  does  not  appear  to  have 
entertained  a  doubt,  but  that  the  tally  was  a  fit  subject  for  such  a 
donation,  though  he  reversed  the  judgment  under  the  idea  that  the 
gift  was  not  sufficiently  proved,  or  if  it  had  been  so,  that  it  was  satis- 
fied by  the  subsequent  testamentary  provision  of  the  donor.     The 
plaintiff'  in  that  case,  was  the  relation  and  house-keeper  of  C.  M. 
with  whom  she  had  lived  upwards  of  twenty  years.  C.  M.  by  his  will, 
made  in  March  1702,  gave  to  the  plaintiff  5001. ;  and  about  two  or 
three  months  afterwards,  being  desirous  of  increasing  her  fortune, 
and  having  a  hair  trunk  in  which  were  several  things  of  value,  C.  M. 
sent  for  her,  and  in  the  presence  of  two  of  his  servants  spoke  thus ; 
"  I  give  to  my  cousin  this  hair  trunk  and  all  that  is  contained  in  it " 
He  gave  her  the  key,  and  bid  the  servant  take  notice  and  remember 
it ;  and  it  was  proved  in  the  cause  that  he,  several  times  afterwards, 
inquired  of  his  servants  if  they  remembered  the  hair  trunk,  and  once 
took  a  candle  and  showed  it  them,  that  they  might  remember  it. 
Three  years  afterwards,  C.  M.  made  another  will,  revoking  all  for- 
mer wills,  and  bequeathed  to  the  plaintiff  10001.  but  took  no  notice 
of  the  gift  of  the  hair  trunk,  or  any  thing  in  it,  and  died.     Four  days 
after  his  death,  upon  opening  the  trunk,  in  the  presence  of  several 
relations  and  other  persons,  there,  were  found  in  it  several  rings, 
pieces  of  gold,  and  among  other  things,  a  tally  upon  the  govern- 
ment for  5001.     A  suit  being  instituted  by  the  plaintiff  for  the  500Z. 
tally  and  the.lOOOJ.  the  Master  of  Rolls  decreed  them  to  her;  and 
on  appeal  from  this  decree  it  was  contended  for  the  appellant,  that 
the  gift  being  in  the  nature  of  a  legacy  and  ambulatory,  until  the 
death  of  the  testator,  he  by  revoking  all  former  wills,  revoked  also 
the  gift,  but  if  it  were  not  to  be  so  considered,  then  that  the  legacy 
of  10001.  was  a  satisfaction  of  the  500/.  tally  ;  and  that  the  plaintiff 
should  have  proved  that  the  tally  was  in  the  trunk  at  the  time  of  the 
gift.     Of  this  opinion  was  Lord   Cowper,  observing,  "  That  these 
sorts  of  donations,  especially  where  they  were  of  the  same  kind  with 
what  was  given  by  the  will,  ought  to  be  fully  proved  in  all  the  cir- 
cumstances, otherwise  they  ought  not  to  be  countenanced,  because 
it  would  open  a  way  to  perjury  and  fraud,  greater  than  the  statutes 
had  provided  against ;  that  the  plaintiff  had  not  proved,  by  any  one 
witness,  that  this  tally  was  in  the  trunk  at  the  time  of  the  gift ;  that 
if  it  had  been  so,  surely  the  testator,  would,  then,  or  when  he  had 
occasion  so  often,  afterwards,  have  told  the  witnesses  of  it ;  that  it 
was  strange  he  should  bid  them  take  notice  of  the  trunk,  and  not 
mention  the  tally,  which  was  the  principal  thing  in  it ;  that  all  the 
plaintiffs  proved  was  its  being  there  when  the  trunk  was  opened, 

(/)  See  Suflra,  p.  25.  *        (m)  Pre.  Ch.  300. 


36  Donations  mortis  causa.  [€H.  1. 

which  was  three  years  after  the  gift,  and  four  days  after  the  testator's 
death.  That  his  lordship  sat  there  to  condemn  frauds,  and  there- 
fore might  presume  them  unless  they  proved  the  contrary."  The 
Court,  however,  considered  the  legacy  of  1000Z.  a  satisfaction  of  the 
500J.  tally,  and  therefore  reversed  the  decree  at  the  Rolls. 

There  seems  to  be  another  reason  independently  of  the  doctrine 
of  satisfaction,  which  would  have  disappointed  the  delivery  in  this 
case  as  a  donation  mortis  causa,  viz.  that  it  was  not  made  during 
the  last  illness  of  the  testator,  nor  in  the  immediate  peril  of  death ; 
and  it  may  be  further  observed,  that  there  was  no  delivery  of  the 
trunk  to  the  donee,  but  of  the  key  only,  so  that  it  appears  the  de- 
livery was  incomplete,  and  the  donation  therefore  imperfect. 

The  reason  why  bank  notes  may  be  the  subjects  of  gifts  mortis 
causa,  viz.  that  they  are  considered  money,  and  not  merely  as  re- 
presenting money,  and  that  the  property  in  the  money  passes  by 
their  delivery,  equally  applies  to  government  and  negotiable  secu- 
rities under  particular  circumstances.  Hence  it  is  conceived  that 
all  negotiable  instruments,  which  require  nothing  more  than  de- 
livery to  pass  to  the  donee  the  money  secured  by  them,  may  be  the 
subjects  of  donations  mortis  causa.  That  the  delivery  of  bank 
notes  has  been  so  adjudged  appears  in  a  preceding  page,(w)  and 
there  is  no  reason  why  exchequer  notes,(o)  or  promissory  notes  pay- 
able to  bearer,(p)  or  bills  of  exchange^)  and  exchequer  bills(r)  in- 
dorsed in  blank,  should  not  have  the  same  capability ;  for  in  all 
those  cases  the  property  and  the  possession  are  inseparable  ;  i.  e.  by 
delivery,  the  property  passes  to  the  donee. 

The  inference  made  in  the  remark  upon  the  case  of  Hill  v.  Chap- 
man(s)  of  the  donation  having  been  made  in  prospectu  mortis,  must 
be  also  observed  in  that  next  stated,  which  w  as  the  first  case  deter- 
mining— 

That  bonds  might  be  subjects  of  donations  mortis  causa.  The 
reasons  for  the  decision  as  to  bonds  are  these  ;  that  although  a  bond, 
which  is  a  specialty,  be  a  chose  in  action,  and  its  principal  value 
consists  in  the  thing  in  action,  yet  some  property  is  conveyed  by  the 
delivery.  The  law  too  allows  it  a  locality,  thereby  making  it  capable 
of  delivery.  It  is  this  locality  that  makes  a  bond  bona  notabilia,  so 
as  to  render  a  prerogative  administration  necessary  where  the  obli- 
gation is  in  one  diocese  and  goods  in  another. (£)  Under  these  cir- 
cumstances, delivery  of  a  bond  as  a  donation  mortis  causa  is  valid. 
Thus  in  Snellgrove  v.  Baily,(u}  a  bond  for  1000J.  was  given  by 
B.  to  C.  who  delivered  it  to  1).  saying,  "  in  case  I  die,  it  is  your's, 
and  then  you  have  something."  Lord  Hardivicke  determined  that 
D.  was  entitled  to  the  bond  as  a  donation  mortis  causa. 

The  above  case  was  followed  by  that  of  Gardner  v.  Farker,(x) 
in  which  Sir  John  Leach,  V.  C.  made  a  similar  decision. 

Since  it  is  settled  that  bonds  are  capable  of  passing  as  donations 
mortis  causa  by  delivery,  it  should  seem  that  the  same  principle 
would  apply  to  the  delivery  of  mortgage  deeds  by  the  mortgagee ; 

(n)  See  sufiratp.  34.        (o)  4  Barn  Sc  Aid.  9.        (//)  Ibid. 

(<]}  Collins  v.  Martin,  1  Bos.  &  Pull.  648-65K 

( r)  Wookey  v,  Pole,  4  Barn.  &  Aid.  1.  («)  See  su/ira,  p.  34. 

(0  2  Ves.  sen.  442.      (u)  3  Atk.  214.    (x)  3  Madd.  184,  and  stated  supra,  p.  27. 


SECT.  II.]  Donations  mortis  causa.  37 

for  they  are  specialties,  and  bona  notabilia,  and  it  can  hardly  be 
contended  that  no  property  in  the  money  secured  passed  by  the  de- 
livery to  the  donee,  when  the  contrary  has  been  determined  in  instan- 
ces of  the  delivery  of  bonds  to  the  donees.  That  the  delivery  of 
mortgage  deeds  mortis  causa  may  be  good,  appears  to  be  impliedly 
admitted  by  Lord  Hardwicke  in  Ward  v.  Turner,(y)  for  he  said, 
"  Suppose  the  delivery  had  been  of  a  mortgage,  and  a  separate  re- 
ceipt had  been  taken  for  the  money,  not  on  the  back  of  the  deed, 
and  the  mortgagee  had  delivered  such  receipt  to  the  donee,  that 
would  not  have  been  a  good  delivery  of  the  possession,  nor  given  the 
mortgage  mortis  causa  by  force  of  that  act."  Hence  arises  a  natu- 
ral inference  from  the  case  so  put,  that  if  the  receipt  had  been  in- 
dorsed on  the  deed,  and  the  deed  delivered  to  the  donee  inprospectu 
mortis,  such  a  delivery  would  have  entitled  him  to  the  money  due  on 
the  mortgage,  and  to  call  upon  the  legal  representative  of  the  donor 
to  clothe  him  with  the  legal  title  to  empower  him  to  recover  the 
money  from  the  mortgagor. (z) 

In  Hassell  v.  Tynte,(a)  Lord  Hardwicke,  who  seldom  doubted, 
entertained  scruples  upon  this  point,  and  would  not  determine  the 
question.  This  doubt  originated  upon  the  Statute  of  Frauds,(&)  for 
he  thought  it  uncertain  whether  an  interest  in  lands  could  pass  since 
that  Act  by  a  parol  gift.  But  in  answer  it  may  be  observed,  that  it 
is  the  property  in  the  money  (the  principal)  which  passes  by  the  gift 
and  delivery,  and  that  the  donee,  being  so  entitled,  the  heir  of  the  do- 
nor is  a  trustee  for  him  of  the  legal  interest  in  the  estate  in  mortgage. 

It  has  been  noticed  that  delivery  of  the  thing  given  is  indispensa- 
ble to  a  valid  donation  mortis  causd,(c)  yet  it  may  be  inferred  from 
Lord  Hardwicke' s  reasoning  in  Ward  v.  Turner, (d)  that  when  the 
intended  gift  is  incapable  of  delivery  in  specie  from  its  size  or  quanti- 
ty, delivery  of  the  thing  by  which  possession  is  to  be  obtained  and 
the  thing  used,  will  be  considered  such  a  delivery  of  the  subject  it- 
self, as  with  the  other  requisites  will  constitute  a  complete  donation 
mortis  causa  ;  for  his  lordship  in  distinguishing  between  the  differ- 
ent effects  of  actual  and  symbolic  delivery,  thus  expressed  himself: 
"  It  never  was  imagined  on  the  statute  21  James  1.  (alluded  to  in  the 
argument)  that  delivery  of  a  mere  symbol  in  the  name  of  the  thing 
would  be  sufficient  to  take  it  out  of  that  act ;  yet  delivery  of  the 
key  of  bulky  goods,  where  wines,  &c.  are,  has  been  allowed  as  de- 
livery of  the  possession,  because  it  is  the  way  of  coming  at  the  pos- 
session or  to  make  use  of  the  thing.  The  key  therefore  is  not  a 
symbol,  which  would  not  do." 

Since  the  preceding  observations  by  the  deceased  author  were 
written,  the  point  contended  for  by  him  has  been  otherwise  deter- 
mined. In  the  case  of  Duffield  v.  Elwes,(e)  George  Elwes  was  pos- 
sessed of  a  bond  for  2927Z.  and  had,  also,  a  mortgage,  created  by  a 
deed  of  even  date  with  the  bond,  for  securing  the  sum  mentioned  in 
the  bond,  and  he  had  another  mortgage  for  30,OOOiL  On  the  first  of 

(y)  2  Vcs.  sen.  443.  (z)  See  3  Madd.  185.  also  Hurst  v.  Beach,  5  Madd.  351. 
355,  a  case  determined  since  the  above  observations  "were  written. 

(a)  Ambl.  318.  (A)  29  Car.  2.  c.  3.  (c)  See  supra,  p.  27. 

(d)  2  Ves.  sen.  443.  and  see  the  cases  of  Bryson'v.  Bronunrigg,  and  Bunn  v. 
Markham,  ante,  pp.  27  5c  28.  (e)  Sim.  Sc  Stu.  1  v.  p.  243. 


38  Donations  mortis  causa.  [Cn.  I. 

September  1821,  when  he  was  on  his  death  bed,  so  ill  as  to  be  un- 
able to  write,  but  of  sound  and  disposing  mind,  in  the  presence  of 
three  persons  as  witnesses,  he  declared  that  he  gave  the  bond  and 
mortgages,  and  the  money  secured  by  them,  to  his  daughter  Mrs. 
Dujfield ;  a  written  statement  of  this  declaration  was  forthwith  made, 
and  signed  by  the  three  persons  in  whose  presence  the  declaration 
was  made.  Very  soon  afterwards,  on  the  same  day,  and  in  presence 
of  the  same  persons,  the  mortgage  deeds  and  bond  were  produced  to 
the  testator,  and  he  was  told  what  they  wTere ;  on  which  he  desired 
them  to  be  delivered  into  the  hands  of  "Mrs.  Dujfield;  they  were  ac- 
cordingly delivered  into  her  hand ;  and,  whilst  she  held  the  deeds, 
he  took  her  hands  between  his,  in  token  of  having  completed  the 
gift,  and  expressed  satisfaction  when  he  had  done  so.  He  died  on 
the  following  day. 

Arguments  similar  to  those  previously  stated  were  urged  in  sup- 
port of  the  gift.  But  the  Vice  Chancellor  said,  "The  case  of  a  bond 
I  consider  to  be  an  exception,  and  not  a  rule.  Property  may  pass 
without  writing,  either  as  a  donatio  mortis  causa,  or  by  a  nuncupa- 
tive will,  according  to  the  forms  required  by  the  statute.  The  dis- 
tinction between  a  donatio  mortis  causa,  and  a  nuncupative  will  is, 
that  the  first  is  claimed  against  the  executor,  and  the  other  from  the 
executor.  Where  delivery  will  not  execute  a  complete  gift  inter 
vivos,  it  cannot  create  a  donatio  mortis  causa,  because  it  will  not 
prevent  the  property  from  vesting  in  the  executors ;  and,  as  a  court 
of  equity  will  not,  inter  vivos,  compel  a  party  to  complete  his  gift, 
so  it  will  not  compel  the  executor  to  complete  the  gift  of  his  testa- 
tor. The  delivery  of  a  mortgage  deed  cannot  pass  the  property 
inter  vivos ;  first,  because  the  action  for  the  money  must  still  be  in 
the  name  of  the  donor ;  and,  secondly,  because  the  mortgagor  is  not 
compellable  to  pay  the  money  without  having  back  the  mortgaged 
estate,  which  can  only  pass  by  the  deed  of  the  mortgagee ;  and  no 
court  would  compel  the  donor  to  complete  his  gift  by  executing 
such  a  deed. 

"  As  to  the  case  where  a  bond  accompanied  the  mortgage  deed, 
I  was  at  first  inclined  to  think  that,  as  the  bond  alone,  if  it  had  been 
the  only  security  for  the  debt,  would,  under  the  decisions,  have 
passed  as  a  donatio  mortis  causa,  so  it  would  draw  after  it  the  mort- 
gage, as  being  a  collateral  security  for  the  same  debt ;  but,  upon 
further  consideration,  I  think  that  the  delivery  of  the  bond,  where 
there  is  also  a  mortgage,  cannot  be  considered  as  a  gift  completed. 
The  mortgagor  has  a  right  to  resist  the  payment  of  the  bond,  with- 
out a  re-conveyance  of  the  estate  ;  and  it  cannot  be  maintained  that 
the  donor  of  the  bond  would  be  compelled  to  complete  his  gift  by 
such  re-conveyance.  The  case  of  the  Duchess  of  Buccleuch  v. 
Hoare,(f]  where  I  held,  that  a  gift  by  will  of  an  English  bond  was 
a  gift  also  of  a  Scotch  heritable  security  for  the  same  debt,  does 
not  apply  to  this  case.  There  the  single  question  was,  whether  the 
gift  of  the  English  bond  was  not,  within  the  intention  of  the  testa- 
tor, a  gift  of  the  debt,  and  did  not  necessarily  carry  with  it  all  secu- 
rities for  the  debt.  The  question  here  is,  not  as  to  the  intention  to 
give,  but  whether  the  gift  be  completed.  I  think  the  gifts  were  not 

(/)  4  MadA  467. 


SECT.  II.]  Donations  mortis  causa.  39 

completed  ;  and  must  declare,  that  there  was  no  good  donatio  mortis 
causa  of  these  mortgages,  even  in  the  case  where  the  mortgage  was 
accompanied  by  a  bond." 

The  next  subject  proposed  to  be  considered  is — 

3.  The  Evidence  admissible  to  prove  the  Donation,  and  the  suffi- 
ciency of  such  Evidence. 

It  is  a  rule  that  a  person  cannot  be  allowed  to  give  evidence  in 
his  own  behalf;  so  that  in  general  a  gift  mortis  causa  must  be  proved 
by  other  evidence  than  that  of  the  donee. 

There  is,  however,  an  exception  to  this  doctrine  in  instances 
where  the  donee  is  executor  or  administrator  of  the  donor ;  for  as  a 
person  in  the  character  of  executor  or  administrator  is  examined 
upon  oath  to  charge  himself  with  receipts  of  assets,  he  may  so  frame 
his  examination  as  to  make  it  operate  in  his  discharge,  which  neces- 
sarily enables  him  to  prove  the  manner  of  his  becoming  possessed 
of  the  property  delivered  to  him  as  a  donation  mortis  causa.  But 
to  entitle  the  donee  to  such  a  discharge,  it  and  the  charge  must  be 
contained  in  the  same  sentence.(g) 

Accordingly  in  Blount  v.  Burrow,(Ji)  A.  the  donee  was  the  exe- 
cutor of  B.  the  donor,  and  being  examined  upon  oath  before  a  Mas- 
ter to  charge  himself  with  the  receipt  of  four  India  bonds,  he  de- 
posed to  the  following  effect ;  "  But  this  examinant  saith,  that  the 
said  testator  on,  &c.  being  about  twelve  days  before  his  death,  gave 
and  delivered  to  the  examinant  four  India  bonds  for  100Z.  each,  for 
his  (examinant's)  use,  to  enable  him  to  carry  on  and  maintain  a  suit, 
&c.  which  was  at  the  testator's  death,  and  still  is,  depending,  and 
therefore  he  claims  the  same."  And  the  Court  was*  of  opinion  that 
the  examination  was  good  evidence  in  discharge  of  A. 

In  Tate  v.  Hilbert,(i)  the  plaintiffs  (donees)  were  relations  of  the 
testator.  The  defendant  was  the  executor.  The  testimony  of  each 
plaintiff  for  the  other  was  admitted  to  prove  the  donations.  But 
Lord  Rosslyn  observed,  "  that  to  make  a  stretch  to  effect  gifts  made 
by  persons  surrounded  by  relations  who  give  evidence  for  each  other, 
would  be  attended  with  .great  inconvenience." 

With  respect  to  evidence  sufficient  to  prove  the  requisites  of  a  do- 
nation mortis  causa,  it  may  be  observed  in  general,  that  it  is  neces- 
sary to  show  the  gift  to  have  been  made  with  a  view  to  the  death  of 
the  donor  of  a  particular  illness,  or  in  consequence  of  some  imminent 
peril,  and  also  delivery  of  the  subject  to  the  donee.  The  necessity 
of  the  first  requisite  appears  from  the  case  of  Tate  v.  Hilbert,(k)  and 
of  the  second,  from  the  cases  below  referred  to. (I) 

In  Blount  v.  Burrow,  as  reported  by  Mr.  Vesey,(m)  Eyre,  Ch. 
Bar.  expressed  an  opinion,  that  if  it  did  not  appear  from  the  evidence 
that  the  gift  was  made  during  the  last  illness  of  the  donor,  the  dona- 
tion, as  one  mortis  causa,  could  not  be  supported.  But  Mr.  Brown, 

(g)  Kirkfiatrick  v.  Love,  Ambl.  589,  and  Talbot  v.  Rutledge,  stated  4  Bro.  C. 
C.  74. 

(A)  1  Ves.  jun.  546.  4  Bro.  C.  C.  72.  See  also  Hill  v.  Chapman,  2  Bro.  C.  C. 
612,  ante,  p.  34.  (i)  2  Ves.  jun.  111. 

( £)  Ibid.  546.  and  see  Waller  v.  Hodge,  2  Swanst.  100. 

(/)  Bryson  v.  Brownrigg,  9  Ves.  1.  Bunn  v.  Markham,  7  Taunt,  224.  Ward 
v.  Turner,  2  Ves.  sen.  431,  and  Miller  v.  Miller,  3.  P.  Will.  356. 

(m)  1  Ves.  jun.  546. 


40  Donations  mortis  causa.  [Cn.  I. 

in  his  re  port  of  the  same  case,  does  not  make  the  Chief  Baron  utter 
any  such  opinion. (n)  The  gift  was  made  as  we  have  seen,  about 
twelve  days  before  the  donor's  death ;  and  because  the  written  ex- 
amination of  the  donjee  omitted  to  state  that  the  gift  was  made  during 
the  last  indisposition  of  the  donor,  the  Court,  according  to  Mr.  f^esey, 
expressed  the  opinion  before  mentioned;  and  directed  an  issue  to 
try  whether  the  gift  was  a  donation  mortis  causa. 

It  must  4>e  observed,  in  relation  to  the  last  case,  that  prior  and 
subsequent  authorities  appear  in  opposition  to  the  opinion  ascribed 
to  the  Chief  Baron  ;  for  in  Lawson  v.  Lawson,(o]  Miller  v.  Miller,(p) 
Hill  v.  Chapman,(q)  Snellgrove  v.  Baily,(r)  and  Gardner  v.  Par- 
ker,(s)  no  evidence  appears  to  have  been  given  of  the  gift  or  delivery 
of  the  subjects  having  been  made  during  the  last  sickness  of  the 
donors,  and  yet  the  gifts  were  supported  mortis  causa.  The  law 
upon  this  subject  may  probably  be  thus  stated :  When  it  appears 
that  the  donation  was  made  whilst  the  donor  was  ill,  and  only  a  few 
days  or  weeks  before  his  death,  as  in  the  cases  last  referred  to,  it 
will  be  presumed,  in  the  absence  of  evidence,  that  the  gift  was  made 
in  contemplation  of  death,  and  in  the  donor's  last  illness ;  but  when 
he  for  a  long  period  survives  the  gift,  then  it  seems  that  evidence 
will  be  required  that  the  donor  was  not  only  seriously  indisposed 
when  he  made  the  gift,  but  also  that  it  was  his  last  illness ;  for  the 
time  of  the  gift  being  so  remote  from  the  period  of  the  donor's  death, 
prevents  the  presumption  before  mentioned.  In  either  case,  how- 
ever, if  it  appear  from  the  evidence  that  the  donation  was  not  made 
with  a  view  to  the  death  of  the  donor,  it  cannot  be  supported  as  a 
gift  mortis  causa.(t) 

To  the  authorities  before  referred  to  may  be  added  one  of  recent 
date,  viz.  Walter  v.  Hodge  ;(u)  a  case  in  which  Martha  Hodge,  the 
wife  and  an  executor  of  her  husband,  claimed  GOOZ.the  amount  of  bank 
notes,  as  a  gift  from  her  husband  mortis  causa.  The  transaction 
detailed  in  her  answer  was,  that  the  testator,  shortly  before  his  death, 
delivered  to  her  a  book  containing  those  notes,  and  informed  her 
that  they  were  for  her  private  use,  and  which  he  gave  her  to  be  at 
her  own  disposal ;  that  she  expended  some  of  them  before  his  death, 
and  the  rest  were  then  in  her  possession.  In  addition  to  this,  the 
evidence  of  Mice  Mason,  the  wife's  niece,  was  given  before  the 
Master,  (upon  whose  testimony  and  the  wife's  answer  he  had  not 
charged  the  latter  with  the  600/L)  the  effect  of  which  was,  that  about 
eleven  days  before  the  testator's  death,  he,  in  the  witness's  presence, 
delivered  to  his  wife  a  note-case  containing  some  bank  notes,  (of  the 
number  of  which  she  was  ignorant,)  telling  her  if  any  thing  happened 
to  him,  the  contents  of  the  note-case  were  her's ;  and  that  on  the 
same  day  the  testator,  on  his  return  from  the  Bank  of  England, 
where  he  had  gone  to  sell  stock,  gave  to  his  wife,  immediately  after 
the  delivery  of  the  note-case,  other  bank  notes,  (of  the  amount  of 
which  the  witness  was  also  ignorant,)  saying,  "  these  are  to  be  your's 
also  ;"  upon  which  the  wife  put  them  into  the  note-case.  Mice  fur- 

(n)  14  Bro.  C.  C.  72.  (o)  Sufira,  p.  32.  (ft)  Sufira,  p.  31. 

( q)  Sufira,  p.  34.  (r)  Sufira,  36.  (s)  Sufira,  p.  27. 

(0  Tate  v.  Hilbert,  4  Bro.  C.  C.  291-294,  and  the  cases  referred  to  in  the  be- 
ginning of  this  section.  (u)  2  Swanst.  92. 


SECT.  III.]  Donations  mortis  causa.  41 

ther  deposed  to  the  testator  being  at  the  period  of  those  gifts  in  an 
indifferent  state  of  health,  but  not  insensible  to  what  he  was  doing, 
and  that  she  understood  the  gifts  to  have  been  made  to  the  wife  for 
her  own  use  conditionally,  viz.  in  case  of  the  testator's  death.  The 
question  was,  whether  a  donation  mortis  causa  had  been  sufficiently 
proved1?  And  Sir  Thomas  Plumer,  M.  R.  determined  in  the  ne- 
gative. 

The  reasons  upon  which  his  Honour  came  to  such  a  conclusion 
were,  first,  from  the  difference  between  the  statement  in  the  answer 
and  the  evidence  of  Alice  Mason;  the  one  representing  the  gift  of 
the  whole  to  be  an  entire  act,  and  the  other  as  two  distinct  acts ; 
the  former  stating  the  single  act  as  a  gift  to  commence  in  prtesenti, 
while  the  latter,  in  contradiction,  described  the  two  gifts  as  made 
with  a  view  to  the  donor's  death.  And  secondly,  because  such  con- 
trary testimony  (if  Mason's  evidence  were  admitted)  prevented  that 
clear  and  satisfactory  evidence  of  the  real  nature  of  the  gift  or  gifts, 
which  is  necessary  to  prove  a  donation  mortis  causa.  But  his  Honour 
was  of  opinion  that  Mason's  testimony  could  not  be  received  to 
establish  a  species  of  gift  not  put  in  issue  by  the  answer ;  and  he 
finally  decided,  that  the  evidence  was  insufficient  to  prove  either  a 
donatio  mortis  causa  or  a  donation  inter  vivos :  not  the  former  for 
the  reason  last  mentioned,  nor  the  latter,  since  it  rested  solely  upon 
the  wife's  answer,  which  was  contradicted  by  the  testimony  of  Alice 
Mason. 

The  last  thing  to  be  considered  is, — 

III.  What  will  defeat  the  donation,  after  it  has  been  legally  made. 

Since  the  sole  motive  of  making  a  donation  mortis  causa  is  the 
expectation  of  speedy  death,  the  law  annexes  a  condition  to  the  gift, 
that  it  shall  be  void  if  the  donor  recover  from  the  disorder,  or 
escape  the  peril  which  threatened  his  life.  It  follows,  therefore, 
that  the  donor's  recovery,  or  his  escape  from  the  danger,  will  defeat 
the  gift ;  and  he  may  resume  the  donation,  or  if  prevented,  recover 
it  at  law.(x) 

The  donee  must  either  continue  in  possession  of  the  subject  from 
its  first  delivery  till  the  death  of  the  donor,  or  by  re-delivery  be  in 
possession  of  it  at  that  time  ;  consequently,  if  the  donor  resume  the 
possession  and  continue  it  until  his  decease,  the  gift  will  be  revok- 
ed,^) and  for  the  following  reason  :  the  gift  not  being  made  to  take 
effect  immediately,  but  being  inchoate,"  and  depended  on  the  event 
of  the  donor's  death,  locus  penitentice  was  reserved  to  him,  of  which 
change  of  mind  the  resumption  of  possession  being  evidence,  deter- 
mined the  donation. 

But  if  the  donor  do  not  exercise  his  power  of  revocation  previously 
to  his  death  by  a  complete  act,  he  cannot  revoke  it  by  a  subsequent 
will;  and  upon  this  principle  :  that  on  the  death  of  the  donor,  the  title 
of  the  donee  becomes,  by  relation,  complete  and  absolute  from  the 
period  of  delivery  in  the  life  of  the  donor ;  and  therefore  incapable 
of  revocation  by  an  act  which  was  inoperative  before  and  only  com- 
menced at  his  death.(«) 

Yet,  although  a  gift  mortis  causa  cannot  be  revoked  by  the  will  of 

(JT)  Bunn  v.  Markham,  7  Taunt  224,  stated  sufira,  p.  28. 
(y)  2  Ves.  sen.  433.  7  Taunt  232.         (z)  See  Jones  v.  Selby,  Pre.  Ch.  300.  304. 
VOL.  I.  F 


Who  may  be  a  Legatee. 


[On.  II. 


the  donor,  it  may  be  satisfied  by  a  legacy  given  to  the  donee.  Sup- 
pose, then,  the  donation  were  of  a  bond  for  1000Z.  and  by  a  subse- 
quent will  a  legacy  of  equal  amount  was  given  generally  to  the  do- 
nee, the  latter  would  be  satisfaction  of  the  former,  subject,  however, 
to  the  donee's  ability  to  prove  that  no  satisfaction  was  intended. 
This  was  determined  in  Jones  v.  Selby  before  stated. (a) 

The  same  principle  which  authorizes  the  application  of  the  doc- 
trine of  satisfaction  to  those  species  of  donation,  equally  applies  to 
that  of  election;  so  that  if  the  donation  were  of  a  bond,  and  the 
donor  afterwards  specifically  bequeath  it,  and  give  by  the  same  will  a 
legacy  to  the  donee,  he  must  elect  between  the  gift  and  the  legacy. (6) 


CHAPTER  II. 

Who  may  be  a  Legatee;  and  of  the  Descriptions  of  Legatees. 

HAVING  in  the  first  chapter  treated  of  a  species  of  disposition, 
which  is  neither  strictly  a  legacy,  nor  a  gift  inter  vivos,  but  partak- 
ing of  the  nature  of  both ;  we  now  proceed  to  consider  legacies 
strictly  so  called,  confining  our  attention  in  the  present  chapter — 
First, — To  the  persons  capable  of  being  legatees  ;  and, 
Secondly, — To  the  persons  who  take  as  legatees  under  certain 
modes  of  description. 

Under  the  latter  division  it  is  proposed  to  consider — 

SECT. 

7.  When  a  child  required  to  answer 
the  description  literally. 

8.  When  the  word  "  children"  will 
and   will  not  include  grandchil- 
dren, 4*c. 

9.  When  the  words  "  children  and 
grandchildren  will  and  will  not 
comprehend  great  grandchildren, 
#c.  ;  and  of  the  claims  of  grand- 
children by  marriage. 

II.   Legacies  to  natural   chil- 
dren. 

1  4*  2.  Effect  of  bequests  to  unborn 
natural  children. 

3.  Capacity  of  natural  children  liv- 
ing at  the  date  of  the  Will,  to  take 
under  the  description ;  and  the 
evidence  admissible  in  those  cases. 


SECT. 

I.  Legacies  to  legitimate  chil- 
ren  and  grand -children. 

1.  Where  children  living  at  the  date 
of  the  Will,  are  entitled  in  exclu- 
sion of  those  afterwards  born. 

2.  Where  children  living   at   the 
death  of  the  testator,  are  entitled 
in  exclusion  of  those  after-born. 

3.  The  right  of  a  legitimate  child 
in  venire  sa  mere. 

4.  When  children  living  at  the  time 
the  fund  becomes  distributable  af- 
ter the  testator's  death,  are  and 
are  not  entitled  in    exclusion  of 
those  after-born.     And, 

First, — When  the  division  is 
postponed  until  a  child  or  children 
attain  21  ;  and 

Second, — When  the  distribu- 
tion is  deferred  during  the  life  of 
a  person  in  esse. 

5.  When  a  younger  child  considered 
an  eldest. 

6.  When  an  eldest  or  only  child 
considered  a  younger. 


III.    Legacies    to    t{  Heirs," 
who  entitled. 

1.  When  next  of  kin. 

2.  When  children. 

3.  When  the  heir. 


(a)  See  Jones  v.  Selby,  Pre.  Ch.  300.  304.  et  supra,  p.  35. 

(b)  See  Johnson  v.  Smith,  1  Ves.  sen.  314. 


CH.  II.] 


and  Description  of  Legatees. 


43 


SECT.  • 

IV.  Legacies  to  "  Issues,"  who 

entitled. 

1.  Grandchildren,  $c.     . 

2.  When,  the  issue  of  children  only 
who  were  living  at  the  date  of  the 
Will. 

3.  When  restrained  to  children. 

V.  Legacies   to  "  Relations," 

who  entitled. 

1.  When  restrained  to  next  of  kin, 

as  where  the  bequest  is — 
To  relations  generally  ;  or 
To  near  relations  ;  or 
To  poor  relations  ;  or 
To  most  necessitous  relations. 

2.  When  the   word   relations  will 
comprehend  other  relatives  than 
next  of  kin  ;  as — 

Where  the  legacy  is  given  to 
poor  as  a  permanent  charity  ;  or 

Where  the  bequest  is  to  poor  or 
poorest  relations,  at  the  discretion 
of  executors,  fyc.  And  the  nature 
of  such  discretion  ;  or 

When    the    intention    appears 
upon  the  will  to  include  more  dis- 
tant relations  than  next  of  kin. 
5.  W/ien  the   word  relations  may 
not  include  all  the  next  of  kin;  as — 

In  bequests  to  my  nearest  rela- 
tions or  my  nearest  relation. -, 

Construction  of  the  term  near- 
est relation. 

Construction  of  the  words  near- 
est relation,  of  the  name,  or  of  the 
name  and  blood  of  the  testator  ; 
and  tlie  effect  of  assuming  the  name 
by  statute  or  royal  licence. 

4.  Whether  relations  by  marriage 
are  included  in  a  bequest  to  rela- 
tions. 

VI.  Legacies    to    "  Next  of 

Kin." 

1.  Who  entitled  under  the  descrip- 
tion. 

2.  Whether  relations  by  marriage. 

3.  Jis  to  distinction  when  the  sta- 
tute of  distribution,   or  intestacy 
is  or  is  not  referred  to   in  the  be- 
quest. 

VII.  Legacies    to    "  Personal 
Representatives"  or  "  Legal 
personal  Representatives." 


SECT. 

1.  When  executors  or  administra- 
tors entitled  under  the  description. 

2.  When  next  of  kin. 

3.  When  children;  and 

4.  When  a  husband  or  wife. 

VIII.  Construction  of  Bequests 
when  limited  to  Executors 
and  Administrators. 

IX.  Legacies    to    "  Descen- 

dants." 

X.  The  word  "  Family,"  who 
entitled  under  it.  • 

1.  When  the  bequest  is  immediate 
and  absolute. 

2.  When  the  bequest  to  family  is 
connected  with  a  power  of  appoint- 
ment. And  the.  different  construc- 
tion when  the  power  is  one  of  selec- 
tion, and  when  not. 

XI.  Legacies    to   "  Nephews 
and  Nieces." 

XII.  Legacies  to  <(  First  end 
Second  Cousins." 

Construction  of. 

V  • 

XIII.  Legacies  to   "  Govern- 

ment." 

XIV.  Legacies  to  "  Servants." 

1.  Who  entitled  under  the  descrip- 
tion; and 

2.  Ofparol  evidence  in  this  case. 

XV.  Of  the  periods  when  the 
persons    described    by  the 
terms  f(  Family"  or  t(  Next 
of  Kin"  &c.  must  be  in  esse 
to  take  under  the  descrip- 
tions* 

1.  When  at  the  date  of  the  will. 

2.  When  at  the  death  of  the  testa- 
tor ;  and 

3.  When  at  the  happening  of  an 
event   subsequently  to  the  testa- 
tor's decease. 

XVI.  When    Legatees     take 
per  capita,  or  per  stirpes,  or 
per  capita  et  stirpes. 

\.  When  per  capita. 

2.  When  per  stirpes;  and 

3.  When  per  capita  et  stirpes. 


44 


Who  way  be  a  Legatee. 


[Cn.  II. 


SECT. 

XVII.  Effect  of  mistakes  in  the 
names  of  Legatees. 

1.  When  error  in,  or  omission  of 
name  will  be  rectified  by  the  des- 
cription of  the  person  or  the  con- 
text of  the  Will. 

2.  When  mistake  in  name  correct- 
ed by  pawl  evidence. 

XVIII.  Effect  of  mistakes  in 
the  descriptions  of  Legatees ; 
and   the  admission  of  parol 
evidence  in  those  cases. 

•  1.    When  the  error  in  description 
rectified  by  the  name. 

2.  When  such  error  is  occasioned  by 
fraud,  it  will  avoid  the  bequest. 

3.  When  error  in  description  cor- 
rected by  parol  evidence,  end  when 


SECT. 
such  evidence  is  inadmissible. 

4.  fVhen  the  evidence  is  insufficient, 
and  the  bequest  void  for  uncertain- 
ty, and 

5.  When  that  evidence  is  insufficient, 
and  the  legacy  established. 

XIX.  Consequences  of  imper- 
fect descriptions  of,  or  imper- 
fect references  to,  legatees 
apparent  in  Wills,  and  of  the 
admission  of  parol  evidence 
in  these  cases. 

1 .  Where  a  blank  is  left  for  a  Chris- 
tian name. 

2.  Where  a  blank  is   left  for  the 
*  whole  name. 

3.  When  only  the  initials  of  a  name 
are  written. 


FIRST, — Who  may  be  a  Legatee. 

1.  Every  person  is  capable  of  being  a  legatee  unless  particularly 
disabled  by  the  common  law  or  by  statutes.  Some  of  the  individuals 
BO  disabled  are  traitors(o)  and  artificers  going  abroad  to  use  and 
teach  their  trades  in  foreign  countries  and  not  returning  home  after 
request  so  to  do  by  the  ambassador,  &c,(fe)  Also  persons  neglecting 
to* take  the  oaths  prescribed  by  law,  and  to  qualify  themselves  for 
offices  which  they  accepted  and  exercised. (c)  To  whom  may  be 
added  individuals  twice  convicted  of  denying  the  truth  of  the  Chris- 
tian religion,  or  the  divine  authority  of  the  Scriptures,  (d) 

Legatees  who  are  attesting  witnesses  to  wills  devising  freehold 
estates  are  not  entitled  to  receive  what  was  so  intended  for  them,  be- 
cause the  statute  of  George  the  Second(e)  avoids  the  bequests,  in 
order  to  restore  the  competency  of  such  witnesses  to  support  the 
wills,  which^  would  otherwise  be  defeated  by  the  operation  of  the 
statute  of  frauds. (f)  That  statute  requires  wills  of  freehold  proper- 
ty to  be  attested  and  subscribed  by  three  or  more  credible  witnesses  : 
a  description  which  is  not  considered  applicable  to  a  person  who 
takes  an  interest  under  the  instrument  which  he  is  made  to  attest  in 
the  character  of  a  witness.  But  the  Act  of  George  the  Second  has 
been  commonly  understood  not  to  extend  to  wills  merely  disposing 
of  personal  property ;  an  understanding  which  now  appears  to  have 
been  founded  in  error ;  for  Sir  William  Grant,  determined  in  the 
case  of  Lees  v.  Summorsgill,(g)  that  a  legacy  given  to  a  subscribing 
witness  to  a  will  bequeathing  personal  estate  only,  was  an  interest 
which  such  person  could  not  legally  claim,  since  the  enacting  clause 
of  the  above  statute  of  George  the  Second  applied  to  witnesses  not 
only  attesting  the  execution  of  wills  of  freehold  estates,  but  to  wit- 


(a)  2  Black.  Com.  512. 
(c)  25  Char.  2.  chap.  2.  sect.  5. 
(rf)  9  &  10  Will.  3.  chap.  32. 
(/)  29  Char.  2.  chap.  5.  sect.  5. 


(A)  5  Geo.  1.  chap.  27,  sect.  3. 
1  Geo.  1.  stat.  2.  chap.  13.  sect.  8. 
(<?)  25  Geo.  2.  chap.  6. 
17  Ves.  508. 


SECT.  I.]  Description  of  Legatees.  45 

nesses  attesting  the  execution  of  "  any  will  or  codicil ;"  terms  em- 
bracing within  their  import  testaments  disposing  merely  of  personal 
property. 

An  uncertificated  bankrupt  may  be  a  legatee,  but  the  beneficial 
interest  will  belong  to  his  assignees  in  trust  for  his  creditors. (h) 

A  legacy  of  personal  chattels  to  an  alien  friend  is  good  since  he 
may  retain  an  interest  in  that  species  of  property  though  he  cannot 
hold  real  estates. (i)  How  far  he  may  take  money  to  arise  by  the  sale 
of,  or  charged  upon  real  estate  does  not  appear  to  be  expressly  de- 
cided. A  bequest  of  monies  charged  upon,  or  arising  from  the  sale 
of  real  estate  is  considered,  in  many  points  of  view,  a  devise  of  land 
itself;  and  in  analogy  to  the  decisions  upon  the  mortmain  acts  and 
the  statute  of  frauds,  it  should  seem  that  the  subject  of  such  a  be- 
quest to  an  alien  friend  would  be  forfeited  to  the  king,  who,  upon 
office  found,  would  become  entitled  to  recover  it.  If  therefore  lands 
were  devised  to  trustees  upon  trust  to  sell,  and  subject  to  certain 
specific  charges  to  pay  the  residue  to  an  alien,  the  alien  might;  if 
such  a  devise  were  good,  insist  upon  paying  off  the  antecedent 
charges,  and,  that  done,  keep  the  estate  itself;  in  such  a  case  little 
doubt  can  be  entertained  but  that  a  forfeiture  would  take  place ;  but 
if  the  lands  were  only  charged,  amongst  others,  with  a  specific  sum 
to  an  alien  friend,  or  the  trust  of  monies  to  arise  by  -sale  of  lands  were 
to  pay  such  a  sum  to  the  alien  friend  so  as  not  to  entitle  him  to  insist 
upon  holding  the  estate  itself  after  satisfying  the  other  charges — 
Qucere,  whether  the  specific  sum  would  be  forfeited  to  the  crown "? 
See  the  analogy  between  the  case  above  put  and  that  of  Roper  v. 
Radcliff"e,(k)  and  the  marginal  note  to  that  case  by  the  author  of  the 
abridgment. 

A  legacy  of  a  mere  personal  chattel  to  an  alien  enemy  will  be  for- 
feited to  the  king,  and,  as  there  must  be  an  inquisition  to  entitle,  if 
before  the  inquisition,  a  peace  take  place,  it  will  discharge  the  cause 
of  forfeiture  and  the  alien  may  recover  the  legacy. (I)  It  should 
seem  that  the  law  would  be  the  same  in  the  ca^e  of  a  legacy  to  a 
natural  born  subject  residing  in  an  enemy's  country  and  in  allegi- 
ance with  such  enemies,  for  he  would  be  considered  as  an  alien 
enemy.(rn) 

SECOND, — Of  the  description  of  Legatees. 

SECT.  I.  Legacies  to  Legitimate  children. 
1.  Where  children  living  at  the  date  of  the  Will  are  entitled  in 

exclusion  of  those  afterwards  born. 

When  it  appears  from  express  declaration,  or  a  clear  inference 
arising  upon  the  face  of  a  will,  that  a  testator  in  giving  a  legacy  to  a 
class  of  individuals  generally  intended  to  apply  the  terms  used  by 
him  to  such  persons  only  as  answered  the  description  at  the  date  of 
the  instrument,  those  individuals  alone  will  be  entitled,  although  if 
no  such  intention  had  been  expressed  or  appeared  in  the  will,  every 
person  falling  within  the  class  at  the  testator's  death  would  have  been 
included  in  the  terms  of  the  bequest. 

f  h]  Ex-parte  Ansell,  19  Ves.  208.        (i)  Calvin's  case,  7  Co.  Rep.  17. 

f  XT)  Cited  in  5  Bacon,  abt.  title  Papists,  C.  7,  last  edition,  p.  278. 

(/)  Attorney  Gen.  v.  Weedon,  Parker's  Rep.  267.  (m)  3  Bos.  8c  Pul.  114. 


46  Description  of  Legatees.  [Cn.  II. 

Accordingly  in  Christopherson  v.  Naylor,(n)  the  bequest  was 
"  to  each  and  every  of  the  child  and  children  of  my  brother  and  sis- 
ters, John,  Esther,  Martha,  and  Tamar  Turnbull,  which  shall  be 
living  at  the  time  of  my  decease,  except  my  nephew  F.  F.;"  for 
whom  he  had  otherwise  provided:  "  But  if  any  child  or  children  of 
my  said  brother  and  sisters,  or  any  of  them  [besides  the  said  F.  F. 
my  nephew]  shall  happen  to  die  in  my  lifetime,  and  leave  any  issue 
living  at,  or  born  in  due  time  after  his,  her,  or  their  decease,  then  the 
legacy  or  legacies  intended  for  such  child  or  children  so  dying,  shall 
be  in  trust  for  his,  her,  or  their  issue  ;  such  issue  taking  only  the  lega- 
cy or  legacies  which  the  parent  or  parents  would  have  been  entitled 
to,  if  living  at  my  decease."  Martha  died  during  the  life  of  the  tes- 
tator, leaving  three  children,  all  of  whom  died  before  the  testator 
made  his  will,  leaving  issue,  who  claimed  in  right  of  their  parents  to 
participate  in  the  bequest.  The  validity  of  the  demand  depended 
upon  the  question,  whether  the  circumstance  of  the  children  not 
having  been  alive  at  the  date  of  the  will  excluded  their  issue  from 
any  shares  of  the  legacies.  And  it  was  determined  by  Sir  William 
Grant,  M.  R.  that  the  issue  were  not  entitled,  as  none  but  children  of 
the  brother  and  sisters,  who  were  living  at  the  date  of  the  will,  had 
any  interest  in  the  bequest.  Those  children  alone  were  the  primary 
legatees,  and  the  bequest  to  issue  was  merely  intended  in  substitu- 
tion of  such  children,  an  intention  which  necessarily  excluded  the 
issue  of  children  who  were  dead  when  the  will  was  made. 

It  is  to  be  remarked,  that  the  last  was  a  case  in  which  the  testator 
did  not  stand  in  the  relation  of  parent  to  the  legatees ;  for  when  a 
testator  is  clothed  with  that  character,  it  being  his  duty  to  provide 
for  his  children  at  his  death,  a  court  of  equity  presumes  that  he  in- 
tended to  do  so  by  his  testament;  it  will  therefore  give  effect  to  the 
supposed  intention  in  laying  hold  of  any  general  expressions  which 
include  all  children,  notwithstanding  it  be  apparent  from  the  con- 
text that  only  children  in  existence  when  the  will  was  made  were 
within  contemplation  of  the  testator.  Yet  even  between  parent  and 
child,  if  it  be  evident  that  he  really  forgot  that  he  might  have  other 
children  than  those  living  at  the  date  of  his  will,  and  has  upon  the 
face  of  that  instrument  made  provision  for  such  of  them  as  were  then 
in  existence,  and  omits  those  to  be  born  in  future,  it  is  impossible  to 
supply  that  defect  and  to  give  them  any  provision,  however  desirous 
the  court  may  be  to  do  so.(o)  i^MA^ 

In  Matchwick  v.  Cock,(p)  James  Mat chwick  having  one  son  and 
two  daughters,  devised  all  his  real  personal  estates  to  trustees,  to  ap- 
ply at  their  discretion  the  whole  or  part  of  the  annual  produce  of  the 
net  surplus  of  both  funds  for  the  support  of  his  wife,  and  the  main- 
tenance and  education  of  his  children  until  his  wife's  death  or  second 
marriage,  in  which  latter  event,  the  provision  for  her  support  was  to 
cease,  and  the  whole  yearly  produce  to  be  applied  for  the  maintenance 
and  education  of  his  children.  The  testator  then  authorized  his  trus- 
tees to  advance  a  premium  to  apprentice  his  son  Thomas,  or  to  apply 
part  of  the  trust  funds  for  the  advancement  of  either  of  his  daughters, 
with  a  direction  to  convey,  upon  his  wife's  death,  a  house  and  lands 

(n)  1  Meriv.  320.  and  see  3  Ves.  611.          (o)  3  Ves.  611.        (/i)  3  Ves.  609. 


SECT.  I.]  Description  of  Legatees.  47 

to  his  said  son  in  fee,  and  on  the  same  event  to  pay  to  each  and  every 
of  his  daughters  who  might  be  then  living  1000L  unless  they  or 
either  of  them  should  have  been  previously  advanced  by  the  trustees, 
and  then  only  so  much  as  would  make  the  portion  of  either  of  his 
daughters  WOOL  The  trustees  were  also  directed  at  the  time  last- 
mentioned  to  deliver  to  his  children  all  his  household  goods,  &c. 
and  to  assign  and  deliver  to  his  said  son  all  the  rest  of  his  property, 
regard  being  paid  to  the  minority  of  his  children,  so  as  not  to  invest 
them  with  any  of  it  before  the  age  of  twenty-one.  In  addition  to  the 
three  children  in  existence  when  the  will  was  made,  the  testator  left 
two  sons  ;  and  the  question  was,  whether  they  were  entitled  with  their 
brother  and  sisters  to  the  provision  of  maintenance  during  the  life  of 
the  wife,  which  depended  upon  this,  whether  that  provision  was  con- 
fined to  children  in  esse  at  the  date  of  the  will  *?  And  Lord  Mvanley^ 
M.  R.  decided  in  favour  of  the  after-born  sons,  upon  the  principle 
before  stated,  and  would  not  permit  the  general  expression  "  his  chil- 
dren" to  be  narrowed  by  the  context.  He  observed,  that  if  it  were 
not  the  case  of  parent  and  child,  the  inference  must  be  made  that  the 
testator  only  intended  to  provide  for  his  eldest  son  and  two  daugh- 
ters ;  and  his  Honour  remarked  the  impossibility  under  the  will  to 
admit  after-born  sons  to  a  share  of  the  residue,  or  to  give  them  the 
sums  provided  for  daughters. 

Next  followed  the  case  of  Freemantle  v.  Taylor, (q)  in  which  Sir 
William  Grant,  upon  the  weight  of  the  last  authority,  made  a  like 
decree  under  similar  circumstances. 

If,  however,  the  intention  of  a  testator  be  clear  to  confine  his 
bounty  to  those  children  only  who  are  living  at  the  making  of  his 
will,  that  intention  must  prevail  (as  before  observed)  to  the  exclusion 
of  children  afterwards  born.  So  that  if  A.  bequeath  1000/.  to  the 
children  of  B.  now  living  ;(r)  or  to  the  three  children  of  B.  (who 
has  that  number  at  the  date  of  the  will)  and  another  child  is  born 
to  him  before  the  death  of  the  testator,  it  cannot  participate  in  the 
legacy ;  because  it  is  manifest  that  the  three  children  in  existence 
^vhen  the  will  was  made,  were  the  only  persons  designed  to  take 
the  1000Z.  ;(s)  and  the  fourth  child  does  not  answer  the  descrip- 
tion in  the  will,  so  that  if  one  of  the  three  died  shortly  after  .the  date 
of  the  instrument,  the  fourth  child  could  not  be  permitted  to  stand 
in  his  place. 

Thus  in  Sherer  v.  Btehop,(t)  Nicholas  Fayting  gave  a  legacy  of 
3000Z.  stock  to  be  divided  between  the  six  children  of  John  Sherer 
and  Mary  his  wife,  at  their  ages  of  twenty-one,  &c.  When  the  will 
was  made,  there  were  six  children  living,  and  a  seventh  was  born 
during  the  life  of  the  testator,  of  whom  he  took  no  notice  in  two 
codicils  which  he  afterwards  added  to  his  will.  And  it  was  determin- 
ed against  the  claim  of  the  after-born  child,  since  it  was  apparent 
that  the  testator  meant  only  to  provide  for  the  six  children  of  John 
and  Mary  Sherer,  who  were  in  esse  when  he  made  his  will,  and  lite- 
rally answered  the  description  of  the  bequest. 

It  is  a  consequence  of  the  seventh  child  not  answering  the  descrip- 
tion in  the  will,  that  it  could  not  be  let  in  to  take  a  share  of  the  lega- 
cy, although  one  of  the  six  children  should  dip  before  the  testa- 

(y)  15  Ves.  363.         (r)  Ambl.  397.          («)  2  Cox,  191.         (/)  4  Bro.  C.  C.  55. 


48  Description  of  Legatees.  [Cn.  II. 

tor.  (u)  And  for  the  same  reason  the  re-publication  of  the  will  by 
the  codicils,  could  not  remove  the  original  objection,  since,  although 
the  will  speaks  as  well  from  the  dates  of  the  codicils  as  from  its 
own  date,  yet  the  difficulty  remains,  viz.  how  a  seventh  child  can 
possibly  take  a  share  in  a  legacy  given  by  will  tq  six  only  in  exis- 
tence at  its  date. 

The  case,  however,  would  be  different  (as  appears  from  that  of 
Sherer  v.  Bishop,  before  in  part  stated)  if  the  bequest  in  the  will  had 
been  to  the  children  of  John  and  Mary  Sherer,  living  at  the  date  of 
it,  without  mentioning  any  number,  for  then  the  will,  being  made  to 
speak  from  the  making  of  the  last  codicil,  and  after  the  seventh  child 
was  born,  that  child  answers  the  description  of  the  bequest,  which 
ought  to  be  read,  "  to  the  children  of  John  and  Mary  Sherer  living 
at  the  date  of  the  codicil" 

A  Court  of  Equity,  indeed,  uses  all  possible  ingenuity  in  constru- 
ing testamentary  expressions  in  such  a  manner  as  to  include  all  chil- 
dren in  existence  at  the  testator's  death.  To  this  practice  may  be 
attributed  the  decision  of  the  case  next  stated,  in  which  the  words 
"  to  every  child  that  Jl.  hath  by  his  wife,"  had  the  same  effect  given 
to  them  as  if  the  expressions  had  been  "  to  every  child  that  Jl.  shall 
have  by  his  wife  at  my  decease."  In  ordinary  acceptation,  the  word 
"  hath,"  is  applicable  to  objects  in  existence,  but  the  Court  thought 
it  might  consistently  with  its  habit,  and  the  intention  of  the  testator, 
give  a  prospective  sense  to  the  term,  in  order  to  include  the  children 
of  A.  living  at  the  death  of  the  testator. 

The  case  alluded  to  is, v  Ringrose  v.  Bramham,(x}  in  which  the 
testator  bequeathed  to  Joseph  Ringrose' s  children  501.  "  to  every 
child  he  hath  by  his  wife  Elizabeth"  to  be  paid  at  twenty-one,  with  in- 
terest in  the  meantime.  A  legacy  of  50i.  was  also  given  in  similar 
terms  to  Christopher  Rhodes' s  children.  There  were  eleven  children 
of  Ringrose  and  Rhodes's  living  at  the  date  of  the  will ;  other  three 
were  afterwards  born,  and  alive  at  the  death  of  the  testator.  And  it 
was  decided  by  the  Master  of  the  Rolls,  that  the  three  were  entitled 
with  the  eleven  children  to  legacies  of  50Z.  each,  his  Honour  remark- 
ing, that  he  might  fairly  construe  the  word  hath,  so  as  to  make  it 
speak  at  the  time  the  will  took  effect,  and  let  in  the  children  born 
between  the  making  of  the  instrument  and  the  death  of  the  testator. 

With  the  case  last  stated,  we  shall  close  the  first  subdivision,  and 
proceed  to  consider — 

2.  When  children  living  at  the  death  of  the  testator,  are  entitled 
to  the  fund  bequeathed  to  children,  in  exclusion  of  those  after-born. 

Where  a  legacy  is  given  to  a  descript  class  of  individuals,  as  to 
children,  in  general  terms,  and  no  period  is  appointed  for  the  distri- 
bution of  it ;  the  legacy  is  due  at  the  death  of  the  testator ;  the  pay- 
ment of  it  being  merely  postponed  to  the  end  of  a  year  after  that 
event,  for  the  convenience  of  the  executor  or  administrator  in  ad- 
ministering the  assets.  The  rights  therefore  of  legatees  are  finally 
settled  and  determined  at  the  testator's  decease.(y)  Upon  this  prin- 
ciple is  founded  the  well  established  rule,  that  children  in  existence 
at  that  period,  or  legally  considered  so  to  be,  are  alone  entitled  to 
participate  in  the  bequest.  As  an  example  of  this  : 

(u)  3  Bro.  C.  C.  148.  (*)  2  Cox.  384.  (y)l  Ball  &  Beat.  459. 


SECT.  I.]  Description  of  Legatees.  JO 

The  testator  bequeathed  his  goods  and  chattels  to  two  persons  to 
pay  debts,  and  the  residue  to  be  employed  for  the  benefit  of  their 
children,  by  the  testator's  daughters,  «/2.  and  B.  in  equal  shares. 
The  daughters  had  children  born  before  the  will  was  made,  some 
afterwards  and  before  the  testator's  death ;  and  others  after  that 
event.  The  question  was,  which  of  those  children  should  take  1 
And  the  Lord  Chancellor  determined  that  the  division  of  .the  pro- 
perty was  to  take  place  at  the  death  of  the  testator,  and  for  that  rea- 
son all  the  children  born  during  the  testator's  life,  were  entitled,  in 
exclusion  of  those  born  after  his  decease. (z) 

So  in  Viner  v.  Francisco)  the  bequest  was  "  to  the  children  of 
my  late  s\ster  Mary  Crowser,  I  give  the  sum  of  10001.  to  be  equally 
divided  among  them."  Mary  had  three  children  living  when  the 
will  was  made,  one  of  them  named  William,  died  before  the  testator; 
so  that  if  the  terms  of  the  bequest  to  children  were  to  be  construed 
to  include  those  children  only  who  were  living  at  the  date  of  the 
will,  William's  share  would  have  lapsed.  But  if  those  terms  were 
to  be  construed  to  include  children  who  should  be  living  at  the 
death  of  the  testator,  the  entire  fund  would  belong  to  the  two  chil- 
dren who  were  then  in  existence,  and  answered  the  description  of 
children  of  Mary. (6)  In  support  of  the  first  point,  it  was  contend- 
ed that  the  bequest  to  the  children  "  of  my  late  sister,"  was  equiva- 
lent to  a  gift  to  them,  nominatim,  or  was  the  same  as  if  the  testa- 
tor had  used  the  words,  "  to  the  three  children  of  my  late  sister 
Mary."  But  the  Master  of  the  Rolls  was  of  a  different  opinion, 
and  declared  in  favour  of  the  two  survivors,  upon  the  principle,  that 
where  a  person  bequeaths  property  among  his  own  children  gene- 
rally, he  is  presumed  to  mean  among  such  of  them  as  shall  be  living 
at  Jiis  death ;  a  presumption  equally  applicable  in  the  present  in- 
stance. 

It  will  make  no  difference  as  to  the  application  of  the  rule,  al- 
though the  terms  of  the  bequest  be  prospective,  and  no  particular 
time  of  payment  is  mentioned ;  for  the  fund  will  nevertheless  be  di- 
visible at  the  testator's  death,  which  necessarily  excludes  after-born 
children.  If  then  a  legacy  were  given  "  to  the  children  of  my  daugh- 
ter Mary,  begotten  or  to  be  begotten,"  as  in  the  case  of '  Sprackling 
v.  Rainer  ;(c)  children  coming  into  existence  after  the  death  of  the 
testator  would  be  excluded. 

The  last  are  cases  of  simple  unqualified  bequests  to  children  :  And 
the  rule  which  we  have  seen  to  apply  to  them,  holds  equally  where 
the  gift  is  general  to  children,  with  a  condition  annexed  to  it  dispo- 
sing of  a  child's  share  upon  its  dying  under  the  age  of  twenty-one. 
The  principle  is  this  :  The  legacy  being  immediate  to  children,  the 
period  of  vesting  and  division  unite  at  the  same  point ;  viz.  the 
death  of  the  testator ;  whence  it  follows,  that  a  child  born  after  the 
happening  of  such  event,  must  be  excluded. 

Accordingly  in  Davidson  v.  Dallas, (d)  the  bequest  was  of  3000/. 
to  the  children  of  the  testator's  brother  Robert  Davidson;  and  if 

(z)  Roberts  v.  Higman,  1  Bro.  C.  C.  532,  in  notes  ;  and  see  Heathe  v.  Heathe, 
2  Atk.  122.  Coleman  v.  Seymour,  1  Ves.  sen.  209. 

(a)  2  Bro.  C.  C.  658.    2  Cox,  190,  S.  C.       (b)  See  infra,  chap.  8,  sect.  4. 
(c)  1  Dick.  344.        (rf)  14  Ves.  576,  and  see  Scott,  v.  Norwood,  5  Madd.  332. 
VOL.  I.  G 


50  Description  of  Legatees.  [Cn.  II. 

either  of  them  died  under  the  age  of  twenty-one,  the  share  was  to  go 
to  the  survivors.  Six  children  of  Robert  were  living  at  the  death  of 
the  testator,  and  other  two  were  afterwards  born.  The  question  was, 
whether,  as  the  eldest  child  had  not  attained  twenty-one,  (the  sup- 
posed period  for  division  of  the  fund,)  the  two  after-born  children 
were  not  entitled  to  parts  of  it.  And  Lord  Eldon  determined  in  the 
negative- for  the  reason  before-mentioned. 

It  is  to  be  noticed  in  relation  to  the  above  case,  that  the  distribution 
of  the  legacy  was  not  actually  deferred  until  the  children  attained 
twenty-one,  a  circumstance  which  makes  it  an  exception  to  that  class 
of  cases,  after  considered,  in  which  children  coming  into  esse  between 
the  death  of  a  testator,  and  the  period  of  the  eldest  or  youugest  child 
attaining  twenty-one  (the  time  when  the  fund  was  made  divisible) 
have  been  allowed  to  partake  of  it. 

The  principle  which  excludes  children  born  after  the  testator's 
death  when  the  fund  is  distributable  at  that  period,  will  also  prevent 
such  children  taking  shares,  notwithstanding  the  testatorhas  direct- 
ed part  of  it  to  be  appropriated  to  secure  the  payment  of  annuities, 
which  for  that  reason  cannot  be  divided  at  his  decease  with  the  re- 
mainder. For  although  where  the  interest  of  a  sum  of  money  is  be- 
queathed to  A.  for  life,  and  the  capital  at  his  death  to  the  children 
of  B.  all  the  children  of  the  latter,  born  in  the  life-time  of  A.  will 
be  entitled,  (and  not  those  only  in  existence  at  the  death  of  the  tes- 
tator, as  will  afterwards  appear ;)  yet  in  the  present  case,  as  the  ap- 
propriation operates  as  a  mere  temporary  separation  of  a  part  of  the 
fund  to  answer  a  particular  object,  and  is  no  impediment  to  the  divi- 
sion of  the  remainder  at  the  death  of  the  testator,  (the  time  when  the 
whole  would  unquestionably  have  been  distributable  if  no  such  ap- 
propriation of  a  portion  of  it  had  been  directed,)  the  money,  so  set 
apart  to  answer  the  particular  purpose,  must  follow  and  belong  to 
the  persons  entitled  to  the  property  out  of  which  it  was  taken,  those 
persons  being  such  of  the  children  of  B.  as  were  living  at  the  death 
of  the  testator.  The  following  is  an  authority  in  confirmation  jof 
these  remarks : 

In  Hill  v.  Chapman(e)  the  testator  gave  specific  legacies  in  trust 
for  all  the  children  of  his  daughter,  Sarah  by  name,  and  then  in  ex- 
istence, to  sons  at  twenty-three,  and  to  daughters  at  twenty-one, 
with  intermediate  interest  for  their  education,  directing  the  surplus 
to  accumulate  for  the  benefit  of  the  legatees,  until  it  became  divi- 
sible, with  benefit  of  survivorship.  He  then  proceeded  to  give  the 
residue  of  his  estate  in  trust  for  all  his  grand-children  by  his  said 
daughter,  to  be  applied  for  their  benefit  "  as  aforesaid."  The  tes- 
tator afterwards  gave  by  a  codicil  some  annuities  for  life,  directing 
WOOL  to  be  appropriated  to  answer  them.  A  grand-child  born  after 
the  death  of  the  testator,  and  in  the  life  time  of  the  annuitants, 
claimed  a  share  of  the  funds,  which  was  attempted  to  be  supported 
on  the  circumstance  of  the  1000/.  not  being  distributable  while  the 
annuitants  were  alive ;  whence  it  was  contended  that  the  effect  of 
the  appropriation  was  to  let  in  the  after-born  child  not  only  to  a  share 
of  the  WOOL  but  also  to  a  share  of  the  residue;  and  it  was  admitted 

(e)  1  Ves.  jun.  405.  3  Bro.  C.  C.  391.  5.  C.  ed.  by  Belt;  and  see  Sineleton  v. 
Gilbert,  1  Cox,  68. 


SECT.  I.]  Description  of  Legatees.  51 

on  the  part  of  the  grand-child,  that  the  phrase  "  as  aforesaid,"  could 
not  by  any  thing  to  which  it  was  applicable,  have  the  effect  of  post- 
poning the  distribution  of  the  residue  to  a  period  beyond  the  testa- 
tor's death.  And  Lord  Thurlow,  C.  decreed  against  the  claim  of 
the  grand-child,  declaring  that  the  whole  residue  was  divisible  at 
the  death  of  the  testator;  and  that  since  grand-children  only  who 
were  living  at  that  time  were  entitled,  they  alone  could  claim  what- 
ever should  form  part  of  it,  as  the  1000Z.  would  do  upon  the  deaths 
of  the  annuitants.  And  his  Lordship  observed,  it  would  be  repugnant 
to  say  that  one  part  of  the  residue  so  given  should  go  one  way,  and 
the  other  part  (1000/.)  another. 

Although  such  be  the  general  rule  in  regard  to  the  exclusion  of 
children  born  after  the  testator's  death,  it  is  yet  subject  to  alteration 
from  the  intention  of  a  testatqr  appearing  upon  the  face  of  his  will. 
If  then  the  intention  be  manifest,  (though  not  so  directly  expressed 
in  words)  to  include  all  the  children  of  a  particular  person,  that  in- 
tention will  prevail,  notwithstanding  the  terms  of  the  gift  would  not 
alone  let  in  after-born  children.  The  distribution,  therefore,  will  in 
such  cases  be  deferred,  in  order,  to  let  in  all  children,  whensoever 
born,  to  take  shares  of  the  fund. 

An  instance  of  this  kind  occurred  under  Mr.  Shepherd's  will(/)  by 
which  he  devised  the  residue  of  his  real  and  personal  estates  to  such 
child  or  children  as  his  daughter  Frdnces  Gibson  should  have,  whe- 
ther male  or  female,  in  equal  shares,  (a  devise,  which,  as  we  have 
seen,  would  not  have  permitted  children  coming  in  esse  after  the  tes- 
tator's death  to  have  taken  shares  of  the  fund.)  The  testator  then 
declared,  that  if  his  daughter  should  die  without  such  issue,  the  re- 
sidue should  go  to  C.  Jefferson  and  Joseph  Pike,  in  equal  proportions. 
By  a  codicil,  he  substituted  Samuel  Shepherd  in  the  place  of  Mr. 
Jefferson,  and  devised  to  them  the  residue  in  common  for  life,  in  the 
event  of  his  daughter's  death,  without  leaving  issue,  but  if  she  left 
any  child  or  children,  he  directed  that  as  certain  annuities  he  had 
given  by  his  will  fell  in,  they  should  be  divided  among  such  children. 
It  appears  to  have  been  the  opinions  of  Lords  Hardwicke  and  Abr- 
thington,  that  all  the  children  of  Mrs.  Gibson  which  she  might  leave 
at  her  death  would  be  entitled. 

The  ground  of  their  Lordships'  opinions  must  have  been,  that  since 
the  words  of  the  bequest  were  sufficient  to  include  all  the  children  of 
Mrs.  Gibson,  and  his  intention  to  do  so  was  clear,  from  the  ultimate 
disposition  of  the  fund  upon  the  contingency  of  Mrs.  Gibson's  death 
without  leaving  any  child,  that  intention  was  to  be  performed,  which 
necessarily  postponed  the  final  distribution  of  the  property  until  the 
determination  of  Mrs.  Gibson's  life.  If,  indeed,  it  had  been  de- 
cided that  children  coming  in  esse  after  the  testator's  death  were  ex- 
cluded, this  strange  effect  might  have  been  produced;  if  Mrs.  Gib- 
son happened  to  have  no  child  living  when  the  testator  died,  but  had 
children  at  her  decease,  although  they  could  not  take  any  thing,  yet 
their  existence  would  have  prevented  the  limitation  ever  taking 
effect,  since  it  depended  upon  Mrs.  Gibson's  death  without  leaving  a 

(/)  Shefiherd  v.  Ingram,  AmbL  448.  1  Ves.  sen.  485.  by  the  names  of  Gibson  v. 
Rogers. 


52  Description  of  Legatees.  [Cn.  II. 

child.     Such  a  construction,  therefore,  would  have  made  the  tes- 
tator die  intestate. (g) 

3.  The  question,  whether  a  child  in  venire  sa  mere  can  take  a  share 
in  a  fund  bequeathed  to  children  under  a  general  description  of 
"  children,"  or  of  "  children  living  at  the  testator's  death,"  does  not 
appear  to  have  been  finally  settled  previous  to  the  decision  of  the 
Court  of  Common  Pleas  in  favour  of  the  child,  in  the  case  of  Doe  v. 
Clarke,(h)  sent  out  of  Chancery  for  the  opinion  of  the  Judges,  and 
"which  case  was  to  the  following  effect : 

The  testator  devised  the  premises  in  question  to  his  brother  Henry 
Clarke  for  life,  remainder  "  to  the  use  of  all  and  every  such  child  or 
children,  whether  male  or  female,  of  his  brother  Henry  as  should  be 
living  at  the  time  of  his  decease,  other  than  and  except  B.  his  (the 
testator's)  niece,- as  tenants  in  commpn,"  &c.  Henry  Clarke,  after 
surviving  the  testator,  left  at  his  death  three  daughters,  and  his  wife 
pregnant  with  another  daughter,  who  was  born.  The  question  was, 
whether  the  daughter  in  venire  sa  mere  at  the  death  of-  her  father, 
Henry  Clarke,  was  entitled  with  her  sisters,  under  the  description  in 
the  will,  as  a  child  living  atHenry\s  decease1?  And  Eyre,  C.  J.  said, 
"  I  have  no  doubt  on  any  view  of  this  case.  It  is  plain,  from  the 
words  of  the  will,  that  the  testator. meant  that  all  the  children  whom 
his  brother  should  leave  behind  him  should  be  benefited:  but  inde- 
pendent of  this  intention,  I  hold,  that  an  infant  in  ventre  sa  mere, 
who  by  the  order  and  course  of  nature  is  living,  comes  clearly  within 
the  description  of"  children  living  at  the  time  of  his  decease."  The 
remarks  of  Buller,  J.  were,  "  In  equity  there  are  two  classes  of  cases 
upon  the  present  subject:  the  first,  where  the  bequest  is  in  the 
nature  of  a  portion  or  provision  for  children,  and  there  an  after-born 
child  takes  his  share  with  the  rest;  of  which  class  is  the  case  of 
Millar  v.  Turner.(i)  The  second,  where  the  bequest  arises  from 
some  motives  of  personal  affection;  and  there-  it  is  confined  to  chil- 
dren actually  in  existence.  Of  this  second  class  was  the  case  of 
Cooper  v.  Forbes ;( k)  which  therefore  makes  a  striking  difference 
between  that  and  the  present  case.  Here  the  bequest  is  not  con- 
fined to  children  living  at  the  death  of  the  testator,  but  it  is  kept 
open  till  the  death  of  his  brother..  It  seems,  indeed,  now  settled, 
that  an  infant  en  ventre  sa  mere  shall  be  considered,  generally  speak- 
ing, as  born  for  all  purposes  for  its  own  benefit."(l)  In  reply,  the 
Chief  Justice  observed,  that  the  two-classes  of  cases  in  equity  pro- 
ceeded on  a  distinction  which  had  always  appeared  to  him  extremely 
unsatisfactory,  and  unfit  to  be  the  ground  of  any  decision  whatever. 

It  seems  that  the  above  decision  of  the  Court  of  Common  PUas, 
and  the  approval  of  it  by  the  Court  of  Chancery,  have  shaken  the 
authority  of  the  second  class  of  cases  referred  to.  It  was  truly  ob- 
served, that  the  distinction  made  by  the  cases  in  equity,  when  a  lega- 


te) See  the  cases  of  Mills  v,  Abrra,  5  Ves.  335,  and  Defflis  v.  Goldschmidt, 
1  Meriv.  417.  stated  infra,  p.  59. 


jun.  673.  5.  C. 

,  ..  Strange,  1  P.  Will. 

244.  341. 

(*)  2  Bro.  C.  C.  63;  and  seeJEllison  v.  Airey,  1  Ves.  sen.  111.  Bennett  v.  JJonfy- 
ivoocL,  Ambl.  708.  711.  and  Pierson  v.  Garnet,  2  Bro.  C.  C.  38. 
(0  See  Doe  v.  Lancashire.  S  T.  R.  49. 


SECT.  I.]  Description  of  Legatees.  53 

cy  is  given  to  children  as  a  portion,  and  when  as  a  bounty.,  in  re- 
gard to  the  admission  or  non-admission  of  a  posthumous  child  to  a 
share  in  the  bequest,  is  too  subtle  and  unsatisfactory.  For  when  it 
is  considered  how  very  inconsistent  with  probability  it  is,  that  when 
a  person  bequeaths  a  legacy  in  such  general  terms  as  to  "  children," 
or  "  to  the  children  of  «#.  living  at  JFs  death,"  he  should  intend 
those  only  to  take  who  might  be  actually  born  at  Jl's  decease,  and 
that  a  child  in  ventre  sa  mere  should  be  excluded  merely  because  it 
happened  not  to  come  into  existence  until  a  few  days  or  weeks  after 
JFs  death,  it  becomes  a  subject  of  surprise,  how  such  a  distinction  as 
we  find  in  the  cases  should  have  ever  prevailed.  Besides,  the  con- 
struction that  a  child  en  venire  sa  mere  might  take  under  so  gene- 
ral a  description,  was  offering  no  violation  to  any  rule  of  law,  as  in 
most  instances  the  law  considers  a  posthumous  child,  the  same  as 
if  it  had  been  born  before  the  death  of  its  father.  A  devise  to  it  is 
good.(m)  It  may  be  vouched  in  a  recovery,  although  for  the  pur- 
pose of  answering  over  in  value .(n]  It  may  be  the  subject  of  mur- 
der.(o)  It  may  take  under  the  statute  of  distribution  as  a  child 
living  at  the  intestate's  death. (jj)  It  may  be  entitled  to  the  bene- 
fit of  a  charge  for  raising  portions  for  children  living  at  the  death  of 
the  testator.(qr)  An  injunction  may  be  obtained  on  its  behalf  to 
stop  the  commission  of  waste. (r)  It  will  prevent  a  remainder  from 
taking  effect  which  depends  upon  the  death  of  its  father  without 
leaving  issue. (s)  A  limitation  to  it  for  life,  with  remainder  to  its 
first  and  other  sons  successively  in  tail,  will,  as.it  seems,  be  a  good 
limitation ;  which  could  not  be  so,  unless  a  posthumous  child  were 
considered  in  law  a  child  in  esse.(t)  Upon  the  whole  it  appears  to 
be  a  right  conclusion,  that  there  is  no  solid  reason  why  a  child  in 
ventre  sa  mere  should  not  be  considered  generally  as  in  existence. 
Modern  authorities,  and  the  solemn  declarations  of  Judges  in  them, 
and  in  other  cases,  are  sufficient  to  authorize  the  proposition,  "  that 
posthumous  children  are  entitled  to  all  the  privileges  and  advanta- 
ges which  they  would  have  enjoyed  if  they  had  been  actually  born 
at  the  time  their  rights  accrued." 

In  accordance  with  such  proposition,  the  case  of  Rawlins  v.  Raw- 
lins,(u)  was  determined.  There  the  testator,  after  providing  for  his 
daughter,  bequeathed  "  to  each  and  every  of  his  other  children  then 
born,  or  thereafter  to  be  born,  and  who  should  be  living  at  the  time 
of  his  decease,  5000JL  a  piece,  &.c.  The  only  question  was,  whether 
a  child  en  ventre  sa  mere  at  the  death  of  the  testator,  and  born  seven 
months  afterwards  was  entitled  ^  And  the  Chancellor  decided  in 
the  affirmative  upon  the  authority  of  the  before  stated  case  of  Doe  v. 
Clarke. 

Since  the  preceding  obseryations  were  written,  it  has  been  deci- 
ded, that  a  child  en  ventre  sa  mere  is  entitled  under  the  description 
of  a  child  born  at  the  testator's  death.  In  the  case  alluded  to,  the 
testator  bequeathed  a  legacy  upon  trust  for  all  the  children  of  A. 

m)  Scatterwoodv.  Edge,  iSalkt  229.     (n)  1  Inst.  390,  k     (o)  3  Inst.  50,  51. 
/z)  Edwards  v.  Freeman,  2  P.  Will.  446.     Wallis  v.  Hodson,  2  Atk.  114. 
y)  Hale  v.  Hale,  Pre.  ch.  50.         (r)Musgrave  v.  Perry,  2  Vern.  710. 
«}  Burdet  v.  Hofiegood,  1  P.  Will.  487. 

(n  Long  v.  Blackall,  3  Ves.  486.  7  Term  Rep.  100.  &  C.  and  per  Buller, 
J.  Thdlusson  v.  Woodjord,  4  Ves.  322.  (u)  2  Cox,  425. 


54  Description  of  Legatees.  [Cn.  II. 

"  born  in  my  life-time."  And  his  Honour  the  Vice  Chancellor  de- 
cided, that  a  child  of  which  Jl.  was  enceinte  at  the  testator's  death, 
was  entitled  to  a  share,  (x) 

The  right  of  a  posthumous  child  in  a  fund  bequeathed  to  "  chil- 
dren" cannot  be  disputed,  when  the  period  of  division  is  deferred 
beyond  the  testator's  death,  and  the  child  is  born  before  that  time 
arrives.  We  shall  therefore  next  consider — 

4.  When  children  living  at  the  time  the  fund  becomes  distributa- 
ble after  the  testator's  death,  are  and  are  not  entitled  in  exclusion  of 
those  born  subsequently  to  that  event. 

It  is  now  settled,  that  when  legacies  are  given  to  a  class  of  indivi- 
duals generally,  payable  at  a  future  period,  as  to  the  children  of  B. 
when  the  youngest  shall  attain  the  age  of  twenty-one;  or  to  be  divided 
among  them  upon  the  death  of  C.  any  child  who  can  entitle  itself 
under  the  description  at  the  time  when  the  fund  is  to  be  divided, 
may  claim  a  share,  viz.  as  well  children  living  at  the  period  of  dis- 
tribution, although  not  born  till  after  the  testator's  death,  as  those 
born  before,  and  living  at  the  happening  of  that  event.  This  rule 
is  founded  upon  the  anxiety  of  a  Court  of  Equity,  to  effectuate  the 
intention  of  testators  in  providing  for  as  many  children  as  possible 
with  convenience.  It  therefore  does  not  unalterably  confine  the 
number  to  the  time  when  the  interests  vest,  which  in  general  is  at 
the  death  of  the  testator,  but  prolongs  the  period  to  the  happening  of 
an  event  upon  which  a  determinate  share  of  the  fund  becomes  pay- 
able.^) The  following  cases  will  confirm  the  preceding  remarks ; 
but  which  it  will  be  convenient  to  consider  under  the  following 
heads  :  First,  when  the  division  is  postponed  until  the  children  at- 
tain a  particular  age ;  and  Secondly,  when  the  distribution  is  defer- 
red till  the  death  of  a  particular  person.  And, 

FIRST,  when  the  division  of 'the  fund  is  postponed  until  a  child  or 
children  attain  a  particular  age. 

If  a  legacy  be  given  to  the  children  of  A.  at  the  age  of  twenty- 
one,  in  that  case,  so  soon  as  the  eldest  arrives  at  that  period,  the 
fund  is  distributable  among  so  many  as  are  in  existence  at  that  time ; 
and  no  child  born  afterwards  can  be  admitted  to  a  share,  because 
the  period  of  division  fixes1  the  number  of  the  legatees.  Distribu- 
tion is  then  made,  and  nothing  remains  for  future  partition. (z) 

In  Gilmore  v.  Severn,(a)  the  testator  bequeathed  to  the  children 
of  his  sister  Jane,  350J.  with  interest,  to  be  paid  equally  amongst 
them  as  they  severally  attained  twenty-one,  with  benefit  of  survivor- 
ship. Jane  had  two  children  at  the  testator's  death  ;  another  child 
was  afterwards  born  during  the  infancy  of  the  other  two ;  and  the 
Court  was  of  opinion  that  since  the  after-born  child  came  into  exis- 
tence before  the  eldest  attained  twenty-one,  it  was  entitled  to  a  share 
of  the  legacy. 

And  in  Prescott  \.-Long,(b)  the  Court  ordered  the  share  of  a  child 
to  be  paid  who  had  attained  the  age  of  twenty-one,  the  rest  being 

(x)  Trower  v.  Butts,  1  Sim.  &  Stu.  181.  For  cases  of  real  estate,  see  White- 
lock  v.  Heddon,  1  B.  &  P.  243.  and  Lancashire  v.  Lancashire,  5  T.  R.  49. 


(t/)  1  Ball  &  Beat,  459. 


Ball  &  Beat.  459-483.    Andrews  v.  Partington,  3  Bro.  C.  C.  402.     See 
also,  Curtis  v.  Curtis,  6  Mad.  14. 
(a)  1  Bro.  C.  C.  582,  ed.  by  Belt.  (£)  2  Yes.  jun.  690. 


SECT.  I.]  Description  of  Legatees.  55 

infants  ;  the  effect  of  which  would  be  to  exclude  after-born  children. 
In  that  case,  the  bequest  was  to  trustees  of  15,OOOZ.  for  the  testa- 
tor's grandsons  George,  Charles,  and  Thomas,  and  his  grand-daugh- 
ters, Augusta  and  Sophia,  (the  five  children  of  his  son  Thomas  Pres- 
cott)  and  all  the  children  of  his  said  son  equally.  The  shares  of 
sons  to  be  paid  at  twenty-one,  and  of  daughters  at  that  age  or  mar- 
riage, with  consent:  George  having  attained  the  age  required,  the 
Court  at  his  suit  ordered  his  share  to  be  immediately  paid  to  him, 
the  period  for  the  final  division  of  the  fund  having  arrived. 

So  in  Hoste  v.  Pratt,(c)  the  testator,  after  directing  a  sale  of  his 
real  and  personal  estates,  and  payment  of  debts,  &c.  gave  the  re- 
mainder of  the  proceeds  and  money  to  trustees,  to  place  at  interest 
and  apply  a  sufficient  part  of  it  for  the  maintenance  and  education 
of  all  the  children  of  Dixon  Hoste  and  wife,  until  they  attained 
the  ages  of  sixteen,  at  which  times  they  were  to  receive  the  capital 
equally.  There  were  nine  children,  some  of  whom  were  born  af- 
ter the  eldest  child  attained  his  age  of  sixteen.  And  the  Court  de- 
termined that  those  after-born  children  were  excluded  from  partici- 
pating in  the  residue,  since  they  were  not  in  esse  when  the  fund  was 
to  be  divided,  viz.  when  the  eldest  child  attained  the  age  of  sixteen  ; 
and  the  Chancellor  remarked,  that  such  construction  was  an  ex- 
tremely convenient  one. 

If,  however,  the  period  appointed  by  a  testator  for  the  distribu- 
tion of  the  fund,  be  such  as  to  admit  of  all  children,  whenever  born, 
that  a  particular  person  may  have,  they  will  be  entitled ;  for  the 
rule  before  stated,  is  not  infringed  upon  in  this  instance.  Thus,  if 
the  bequest  be  to  all  the  children  of  B.  to  be  paid  when  the  youngest 
attains  the  age  of  twenty-one  ;  the  period  of  distribution  being  post- 
poned until  the  youngest  child  which  B.  may  ever  have,  shall  arrive 
at  that  age,  necessarily  and  properly  lets  in  all  the  children  of  B. 

This  was  determined  in  the  c§se  of  Hughes  v.  Hughes,(d)  in  which 
the  testator  devised  the  residue  of  the  rents  and  interest  of  his  real 
and  personal  estates,  in  trust,  for  the  maintenance  and  education  of 
all  the  children  of  his  three  -daughters,  Rebecca,  Susanna,  and  De- 
vereux,  equally  until  the  youngest  of  his  said  grand-children  attain- 
ed twenty-one ;  and  in  the  event  of  any  of  them  dying  before  that 
period,  leaving  legitimate  children,  such  children  were  to  be  entitled 
to  the  shares  of  their  parents.  And  when  such  youngest  grand- 
child attained  twenty-one,  the  testator  gave  a  share  of  the  capital  to 
such  his  grand-children  as  should  be  then  living,  and  to  the  children 
of  such  as  should  be  then  dead.  At  the  testator's  death,  Devereux 
had  six  children,  and  another  child  was  afterwards  born.  Rebecca 
had  only  one  when  the  testator  died  ;  but  another  afterwards.  And 
Susanna  had  four  children  at  the  testator's  death,  and  two  more 
after  that  event.  The  question  was,  whether  the  children  born  af- 
ter the  decease  of  the  testator,  should  participate  in  the  fund  with 
those  in  esse  at  that  period  *?  And  Lord  Thurlow  decreed  in  the  af- 
firmative, upon  the  principle  that  the  fund  was  to  be  kept  entire  un- 
til the  youngest  child  of  the  testator's  three  daughters  attained  the 
age  of  twenty-one. 

The  following  case  is  an  authority  that  a  child  of  a  second  mar- 

(c)  3  Ves.  730.  (rf)  3  Bro,  C.  C.  352.  ed.  by  Belt,  14  Ves,  256. 


56  Description  of  Legatees.  [Cn.  II. 

riage  may  take  with  children  of  a  prior,  although  the  first  husband 
were  living  when  the  will  was  made.  So  that  if  a  legacy  were  given 
to  the  children  of  Jl.  to  be  paid  at  their  ages  of  twenty-one,  and  Jl. 
married  again  after  the  testator's  death,  and  had  a  child  by  that  mar- 
riage, before  the  eldest  of  the  first  marriage  attained  twenty-one, 
such  child  would  be  entitled  to  share  the  legacy  with  the  children  of 
the  former  marriage.  The  case  also  proves,  that  in  order  to  confine 
the  generality  of  the  word  "children,"  to  those  of  the  first  marriage, 
it  must  clearly  appear/e)  that  the  testator  meant  by  the  term  "  chil- 
dren," those  only  of  that  marriage ;  and  that  conjecture  or  private 
opinion  or  belief  of  his  intention  to  use  the  word  in  such  a  restricted 
sense  will  be  ineffectual. 

Thus  in  Barrington  v.  Tristram,(f)  Admiral  Barrington  be- 
queathed 5000Z.  three  per  cent,  consols,  in  trust  for  all  the  children 
of  his  niece,  Mrs.  Tristram,  the  wife  of  Thomas  Tristram,  in  equal 
shares  ;  to  be  vested  interests  in,  and  transferred  to  such  of  them  as 
should  be  sons,  at  twenty-one,  and  to  daughters  at  that  age,  or  on 
marriage  with  consent,  with  benefit  of  survivorship,  directing  a  suffi- 
cient part  of  the  dividends  to  be  applied  for  their  maintenance, 
without  any  regard  to  the  ability  of  their  father  ;  but  if  any  of  them 
died  before  their  interests  vested,  leaving  issue,  it  was  to  stand  in  the 
place  of  its  parent.  And  if  all  the  children  of  Mrs.  Tristram  died 
before  they  became  entitled  as  aforesaid,  and  without  leaving  issue, 
the  5000J.  annuities  were  to  be  in  trust  for  all  the  children  of  Bar- 
rington Price,  who  should  be  living  at  the  death  of  the  surviving 
child  of  Mrs.  Tristram.  The  testator  died  soon  after  the  date  of  his 
will.  Thomas  Tristram  died  about  a  year  before  him,  leaving  six 
children.  Mrs.  Tristram  married  again,  and  had  one  child,  Louisa 
Cooke,  who  claimed  a  share  of  the  annuities.  Against  that  demand 
it  was  urged,  if  the  construction  were  extended  to  a  child  coming  in- 
to esse  after  the  death  of  the  testator^it  must  also  be  extended  under 
the  will,  so  as  to  give  to  the  children  of  that  child  a  proportion  of  the 
fund,  at  the  age  of  twenty-one,  which  would  be  prolonging  the  vest- 
ing to  a  period  beyond  that  allowed  by  law ;  a  difficulty  which  could 
not  occur  if  it  were  understood,  children  living  at  the  testator's 
death.  To  that  argument,  LordEldon  answered,,  that  the  rule  being 
long  settled  which  lets  in  all  children  born  before  a  share  of  the  fund 
is  payable,  the  objection  taken  in  this  case,  was  no  more  than  that  of 
a  testator  having  given  property  to  persons  whom  the  law  ascertains, 
with  a  limitation  over,  which  could  not  take  effect;  instances  of 
which  occurred  every  day.  And  although  his  Lordship  expressed, 
as  his  private  opinion,  that  the  admiral  never  contemplated  his 
niece's  second  marriage,  and  that  the  objects  of  his  bounty  were  her 
children  by  Mr.  Tristram,  yet  he  considered  that  intention  not  to  be 
sufficiently  clear  upon  which  to  found  a  judicial  opinion  against  the 
general  words  in  the  will.  He,  therefore,  after  expressing  a  strong 
conjecture  against  that  opinion  in  a  judicial  sense,  declared,  that 
every  child  of  Mrs.  Tristram  (then  Cooke)  should  take,  who  might 
come  into  existence  before  any  of  her  sons  attained  twenty-one,  or 
any  of  her  daughters  attained  that  age  or  married,  or  any  child  mar- 
ried and  died  under  twenty-one,  leaving  issue, 

(e)  As  in  Salkdd  v.  Vernon,  I  Eden,  64.  71.  (/)  6  Ves.  345. 


SECT.  I.]  Description  of  Legatees,  57 

Besides  the  objection  taken  to  the  rule  itself  (before  stated,)  it  is 
obvious  that  there  are  circumstances  in  the  last  case  affording  strong 
presumption,  that  the  testator  merely  intended  to  provide  for  the 
children  of  his  niece  by  Mr.  Tristram.  It  is  tvue  that  in  making  the 
gift  to  the  children  of  his  niece,  he  calls  her  "  the  wife  of  the  Reve- 
rend Thomas  Tristram"  which  are  words  of  mere  description,  and 
from  whence  no  inference  whatever  arises ;  but  a  very  probable  con- 
jecture results  from  the  clause  of  maintenance  directed  to  be  allowed 
the  children  without  regard  to  the  ability  of  "  their  father"  that  by 
the  term  "  father"  Mr.  Tristram  then  living  was  personally  alluded 
to,  and  consequently  that  the  niece's  children  by  him  were  alone  in- 
tended to  take  the  provision.  Lord  Eldon,  however,  repelled  the 
presumption  in  observing,  that  there  were  no  words  to  the  above  ef- 
fect, and  that  the  word  "  father"  in  the  passage  was  insufficient  to 
prevent  the  application  of  the  general  rule.  It  may  be  also  observ- 
ed, that  in  the  gift  over  of  the  fund,  the  exclusion  of  the  children  of 
Barrington  Price  who  should  not  be  living  at  the  death  of  the  sur- 
viving child  of  Mrs.  Tristram,  might  induce  a  presumption  that  the 
testator  only  meant  children  by  Mr.  Tristram,  and  so  thought  Lord 
Eldon;  but  his  Lordship  remarked,  it  would  be  very  difficult  to 
make  out  the  title  of  the  children  of  Barrington  Price  against  those 
of  Mrs.  Tristramby  any  other  husband. 

Since  the  rule  excluding  children  from  a  participation  in  the  pro- 
perty, who  are  not  in  being  when  an  eldest  child  attains  twenty-one, 
and  then  entitled  to  call  for  his  share,  is  founded  upon  convenience 
and  necessity  ;  slight  circumstances  of  intention  to  include  all  chil- 
dren generally  will  not  be  permitted  to  form  exceptions  out  of  it. 
If  then  a  testator  not  only  give  a  legacy  to  the  children  of  A.  at 
twenty-one,  but  add  the  expressions  "  born  or  to  be  born,"  still  a 
child  coming  into  esse  after  the  eldest  has  attained  the  above  age, 
will  be  excluded. 

Accordingly  in  Whitbread  v.  Lord  St.  John,(g)  the  bequest  was 
of  12,0001.  to  trustees,  to  apply  the  interest  towards  the  education 
of  all  the  children  of  the  testator's  daughter,  Lady  St.  John,  during 
their  minorities,  or  until  marriage  with  consent ;  and  the  trustees 
were  directed  to  pay  the  principal  "  unto  and  among  the  child  and 
children  of  his  said  daughter  by  Lord  St.  John,  born  or  to  be  born, 
a*  many  as  there  might  be,  in  equal  shares,"  when  and  as  they 
should  attain  their  ages  of  twenty-one,  or  be  married  with  consent, 
&c. ;  with  benefit  of  survivorship,  and  a  limitation  over,  in  the  event 
of  all  dying  before  twenty-one,  or  marriage,  &c.  There  were  four 
children  of  Lord  and  Lady  St.  John,  two  of  whom  having  attained 
twenty-one,  petitioned  for  their  shares ;  a  request  which  could  not 
have  been  granted,  if  all  the  children  that  Lord  and  Lady  St.  John 
might  in  future  have  were  entitled  to  portions  of  the  legacy.  And 
Lord  Eldon  ordered  payment  of  two-fourths  to  the  adult  legatees 
upon  the  foundation  of  the  rule  before  mentioned. 

Upon  the  authority  of  the  last  was  decided  the  case  of  Gilbert  v. 
Boorman,(h)  in  which  a  residue  was  bequeathed  to  the  plaintiff, 
norninatim,  and  "  all  the  other  children  hereafter  to  be  born"  of  a 
child  of  the  testator,  at  their  ages  of  twenty-one.  The  plaintiffhav- 

($0  10  Ves.  152.  (A)  11  Ves.  238. 

VOL.   I.  H 


58  Description  of  Legatees.  [Cn.  II. 

ing  attained  that  age,  applied  for  the  fund,  which  Sir  William  Grant 
ordered  to  be  paid,  observing,  that  children  born  afterwards  are 
excluded  of  necessity  when  a  partial  distribution  is  to  take  place  ; 
though,  if  that  circumstance  did  not  prevent  it,  all  would  be  entitled. 

But  as  a  testator  may  manifest  his  intention  to  include  all  the  chil- 
dren that  an  individual  may  ever  have,  where  no  period  for  division 
of  the  fund  is  expressly  appointed  by  him,  and  such  intent  will  be 
executed  ;(i)  so  he  may  do  in  instances  where,  although  the  shares  of 
children  are  directed  by  him  to  be  paid  at  twenty-one,  the  whole  con- 
text of  his  will  shews  distinctly,  that  he  meant  to  provide  for  all  the 
children  such  individual  might  ever  have  :  and  upon  this  principle ; 
that  where  the  great  object  of  a  testator  appears  to  be  to  include  with- 
in the  terms  of  his  bounty  all  the  children  of  A.  which  is  consistent 
with  a  particular  direction  in  the  will,  that  would  have  the  effect,  if 
followed,  of  excluding  children  born  after  the  eldest  child  attained 
twenty-one,  as  also  defeat  pther  provisions  in  it,  the  latter  must  give 
place  to  the  former. (k) 

It  seems  to  have  been  upon  such  grounds  that  Lord  Rosslyn  de- 
termined the  case  of  Mills  v.  Norris  ;(l)  in  which  Mr.  Moffat  devised 
his  residuary  real  and  personal  estates,  and  their  rents  and  interest, 
equally  among  the  children  of  his  two  daughters  ;  to  be  paid  to  sons 
at  twenty-one,  and  to  daughters  at  that  age,  or  upon  marriage.  (Here 
we  perceive  the  testator  expressly  declares  that  the  fund  is  to  be  di- 
vided when  the  children  attain  twenty-one,  or  marry ;  a  direction 
which,  if  nothing  more  appeared,  would,  as  we  have  seen,  exclude  all 
children  born  after  the  marriage  of  a  daughter,  or  the  arrival  of  a 
son  at  the  age  of  twenty-one.)  The  will  then  declared,  that  if  any 
child  married,  and  died  before  their  mothers,  leaving  issue,  they 
should  stand  in  the  places  of  their  parents ;  and  in  case  his  daugh- 
ters died  without  issue,  or,  having  had  such,  they  should  die  without 
issue  in  the  life-time  of  his  daughters,  the  residuary  fund  should  go  to 
the  testator's  brothers,  James  and  Aaron  Mojfat,  absolutely.  The 
daughters  had  two  children,  who  after  the  death  of  the  testator  at- 
tained their  ages  of  twenty-one.  And  Lord  Rosslyn  decided  upon 
the  authority  of  Shepherd  v.  Ingham,(m)  before  stated,  that  all  the 
children  which  the  daughters  should  have  would  be  entitled,  and  that 
a  child  that  came  in  esse  after  the  two  children  attained  twenty-one, 
was  not  excluded  from  a  share  of  the  capital. 

It  is  obvious  that  the  testator  meant  to  provide  for  all  children  of 
his  daughters,  and  that  the  whole  residue  should  go  over  to -his  bro- 
thers, if  his  daughters  died  without  leaving  a  child,  or  the  descendant 
of  a  child.  This  great  object  would  have  been  disappointed  if  the 
fund  became  vested  and  distributable,  upon  the  eldest  child  attaining 
twenty-one,  to  the  exclusion  of  after-born  children ;  for  in  such  case, 
if  all  the  first  class  had  died  before  their  mothers,  and  they  had  left 
the  second  class  of  children  surviving  them,  then,  although  the 
second  description  of  children  could  take  nothing,  they  would  pre- 
vent the  fund  going  to  the  testator's  brothers,  and  he  would  have  died 
intestate. 

f  i)  Ante,  p.51.  (*)  1  Ball  &  Beat.  471.  (/)  5  Ves.  335. 

(m)  Ambl.  448.  and  see  observations  sufira,  p.  51 ;  and  the  case  of  Huteheson 
T.  Jones,  stated  infra,  p.  62. 


SECT.  1.3  Description  of  Legatees.  59 

So  also  in  Defflis  v.  Goldschmidt,(n)  the  testator  bequeathed  to  all 
the  children  of  his  sister  Theobaldina,  whether  then  born  or  there- 
after to  be  born,  20001.  each,  payable  at  twenty-one  ;  directing  the 
shares  of  daughters  marrying  under  that  age  to  be  properly  settled, 
and  the  interest,  until  the  children's  shares  became  payable,  to  be 
paid  to  his  said  sister,  for  her  separate  use.  He  then  requested  his 
executors  to  set  apart  a  sufficient  fund  for  paying  the  legacies  to  his 
sister's  children  as  they  became  due,  and  the  intermediate  interest  to 
his  sister.  And  if  his  sister  died  before  all  her  sons  attained  twenty- 
one,  or  before  all  her  daughters  arrived  at  that  age  or  marrried,  the 
testator  directed  a  sufficient  part  of  the  interest  to  be  applied  for  their 
education  and  maintenance,  and  the  remainder  to  be  added  to  the 
capital,  &c.  It  was  admitted  that  the  terms  of  the  bequest  were 
sufficient  to  include  all  the  children  of  the  sister,  whether  born  be- 
fore or  after  the  testator's  death  ;  and  the  difficulty  of  making  an  ap- 
propriation to  answer  legacies  given  to  an  uncertain  number  of  per- 
sons, viz.  all  the  children  the  sister  might  ever  have,  was  urged 
against  the  admission  of  children  born  after  the  death  of  the  testa- 
tor. But  Sir  William  Grant,  M.  R.  declaredthat  such  difficulty,  if 
it  even  amounted  to  positive  impracticability,  could  not  control  the 
express  words  of  the  testator's  declaration ;  and  that  his  intention 
not  to  exclude  any  of  his  sister's  children  must  be  complied  with,  even, 
were  it  necessary,  to  the  extent  of  impounding  the  whole  residue. 

SECOND.  When  the  distribution  of  the  fund  is  deferred  during  the 
life  of  a  person  in  esse. 

The  cases  under  this  head  are  numerous,  but  they  all  agrae  in  es- 
tablishing the  general  rule  before  stated,  viz.  when  the  enjoyment 
of  the  thing  given,  is  by  the  testator's  express  declaration  not  to  be 
immediate  by  those,  among  whom  it  is  to  be  finally  divided,  but  is 
postponed  to  a  particular  period,  as  the  death  of  A.  then  children  or 
individuals  who  answer  the  general  description  at  that  time,  when 
the  distribution  is  to  be  made,  are  entitled  to  take,  in  exclusion  of 
those  afterwards  coming  in  esse. 

Thus  in  Ellison  v.  Airey,(o)  a  woman  bequeathed  3001.  to  Eliza- 
beth Paxton,  to  be  paid  at  her  age  of  twenty-one  or  marriage  ;  but 
if  she  died  before  the  happening  of  either  of  these  events,  then  to 
the  younger  children  of  Francis  Ellison  equally.  Some  of  Ellison's 
children  having  been  born  before,  others  at  the  date  of  the  will,  and 
the  rest  after  the  death  of  the  testatrix,  the  question  was,  which  of 
the  above  classes  were  entitled  to  the  legacy  *?  And  Lord  Hard- 
ivicke  was  of  opinion  that  all  who  should  be  younger  children  at 
the  death  of  Elizabeth  before  twenty-one  or  marriage,  would  be  en- 
titled to  the  3001. 

The  principle  which  governed  the  decision  was,  that  the  legacy, 
being  contingent,  and  the  fund  not  divisible  before  Elizabeth's 
death  before  marriage  or  under  twenty-one,  there  was  no  inconve- 
nience in  letting  in  the  younger  children  of  Mr.  Ellison,  who  should 
be  born  in  the  intermediate  time. 

So  in  the  case  of  the  Attorney  General  v.  Crispin,(p)  the  testa- 
trix, after  giving  several  annuities,  bequeathed,  after  the  death  of 

n)  1  Meriv.  417.     19  Ves.  566.  S.  C.  (o)  1  Ves.  sen.  111. 

'  )  1  Bro.  C.  C.  386. 


60  Description  of  Legatees.  [Cu.  II. 

the  annuitants,  50Z.  a  piece  to  the  children  of  D.  Riviere.  D.  Ri- 
viere then  had  seven  children,  six  of  whom  died  in  the  life  of  the 
surviving  annuitant.  He  also  had  a.  daughter  born  after  the  death 
of  the  testatrix,  and  during  the  life  of  that  annuitant.  One  of  the 
questions  was,  whether  the  daughter  born  after,  the  testatrix's  death 
was  entitled  to  a  legacy  of  50l}l  And  it  was  determined  in  her  fa- 
vour. 

Also  in  Congreve  v.  Congreve,(q)  Jinn  Nicholls  devised  her  real 
estates  to  trustees  in  trust  for  her  nephew  T.  Congrfve  for  life,  and 
to  sell  them  after  his  death,  and  divide  the  proceeds  among  all  his 
children  at  the  ages  of  twenty-one.  The  testatrix  then  gave  her 
personal  estate  to  the  same  trustees  to  distribute  among  all  the  chil- 
dren of  her -said  nephew  equally  at  the  same  ages.  The  question 
was,  whether  a  child  born  after  the  testatrix's  death,  and  who  had 
attained  twenty-one,  was  entitled  to  a  share  *?  And  it  was  decided 
in  the  affirmative. 

The  child,  in  the  last  case,  must  be  supposed  to  have  been  born 
before  any  other  had  attained  the  age  of  twenty-one  ;  for  in  regard  to 
the  personal  estate,  the  bequest  is  immediate  to  all  the  nephew's 
children  at  that  age,  so  that  when  the  eldest  arrived  at  that  period 
of  life,  the  fund  became  distributable,  to  the  exclusion  of  after-born 
children,  except  of  such  as  might  then  be  in  venire  sa  mere.  And 
with  respect  to  the  proceeds  from  the  sale  directed  of  the  real  estate, 
there  could  be  no  doubt  of  the  child's  right  to  participate  in  them, 
since  it  was  in  esse  at  the  death  of  its  father,  the  time  appointed  for 
the  distribution,  all  the  children  having  attained  their  ages  of  twen- 
ty-one. 

The  next  is  a  case  of  frequent  reference  and  of  general  authority 
on  this  subject.  In  Devisme  v.  Mello,(r)  Mr.  Devisme  made  be- 
quests by  a  codicil  to  the  following  effect :  "  I  give  a  further  sum  of 
5000Z.  to  purchase  stock,  and  the  interest  to  be  paid  to  my  mother 
Marianne  Devisme.  At  her  death  the  interest  to  be  paid  to  my 
brother  William  Devisme,  and  at  his  demise  to  my  godson  Stephen; 
at  his  decease,  if  before  he  be  of  age,  to  be  divided  among  his  bro- 
thers equally."  Again,  "  I  give  to  my  brother  Lewis  Devisme,  40001. 
to  buy  stock,  to  enjoy  the  income  during  life,  and  if  he  do  not  marry 
and  leave  children,  to  revert  to  my  brother  William's  children  in 
equal  parts."  The  testator  died  in  November  1770.  Stephen,  his 
godson  and  son  of  William,  died  an  infant  before  his  father,  on  the 
26th  of  February  1770  ;  and  before  the  making  of  the  codicil,  leav- 
ing William  and  James  his  two  brothers ;  and  who  were  his  only 
brothers  living  at  the  date  of  the  codicil,  and  at  the  testator's  death. 
Stephen  had  also  two  sisters,  Elizabeth  and  Sophia,  living  at  the  two 
last  mentioned  periods;  but  Sophia  died  in  January  1774.  Lewis 
Devisme,  the  testator's  brother,  died  in  September  1776,  unmarried 
and  without  issue,  at  which  time  William  his  brother,  had  no  chil- 
dren living,  except  William,  James,  and  Elizabeth.  Marianne  De- 
visme, the  mother,  died  in  February  1779  ;  and  William  Devisme 
the  brother,  in  February  1781,  leaving  children,  William,  James,  and 

(9)  1  Bro.  C.  C.  530.  and  see  Bartlett  v.  Hollister,  in  a  note  to  the  last  case,  S. 
P.  and  Gilmore  v,  Severn,  1  Bro.  C.  C.  582. 
(r)  1  Bro.  C.  C.  537.  ed.  by  Belt. 


SECT.  I.]  Description  of  Legatees.  61 

Elizabeth,  and  another  son  Andrew,  who  was  born  in  October  1778, 
after  the  testator's  death,  and  after  the  death  of  Lewis  Devisme,  the 
brother.  The  questions  appear  to  have  been  two  ;  first,  whether 
Andrew  was  entitled  with  his  brothers  to  a  share  of  the  legacy  of 
5000/.  given  to  his  brother  Stephen,  although  not  born  till  after  the 
deaths  of  the  testator  and  of  Stephen.  And  Lord  Thurlow  decided 
in  the  affirmative,  upon  the  principle,  that  as  Andrew  was  born  be- 
fore the  distribution  of  the  fund,  the  division  not  being  to  take  place 
during  the  life  of  his  father  William,  he  wa's  entitled  to  a  part  of  it. 
The'  second  question  seems  to  have  been,  whether  Elizabeth,  the 
sister  and  personal  representative  of  Sophia,  the  daughter  of  the  tes- 
tator's brother,  William  Devisme,  was  entitled  to  any  part  of  the 
legacy  of  40001.  bequeathed  to  William's  children  at  the  death  of 
Lewis,  as  Sophia  died  during  the  life  of  Lewis  ?  And  his  Lordship 
determined  in  Elizabeth's  favour. 

It  may  be  inferred  from  the  silence  of  the  report  in  regard  to  any 
supposed  interests  of  Stephen  and  Andrew  in  the  40001.  that  it  was 
considered  they  had  none,  since  both  of  therrt  were  born  after  the 
death  of  Lewis,  the  tenant  for  life.  And  this  case  is  an  authority 
that,  if  a  child  come  in  esse  previous  to  the  death  of  a  tenant  for  life 
of  the  fund,  it  takes  a  vested  interest ;  which,  in  the  event  of  its  dy- 
ing before  such  tenant,  will  entitle  its  personal  representative  to  a 
portion  when  the  property  becomes  distributable. 

It  follows  from  the  preceding  authorities,  that  if  the  bequest  be 
not  to  children  generally,  but  to  a  child  to  be  born,  particularly  de- 
scribed, and  intended  to  take  the  legacy  upon  the  death  of  a  per- 
son to  whom  it  is  previously  given  for  life,  or  for  a  determinate  pe- 
riod, it  must  not  only  answer  the  description,  but  be  in  existence 
when  the  event,  upon  which  it  is  to  take,  happens.  For  if  a  legacy 
be  given  to  B.  for  life,  and  then  to  the  eldest  child  of  C.  and  if  he 
have  none,  then  to  D.  should  C.  have  no  child  at  the  death  of  B. 
but  one  is  afterwards  born,  it  will  be  excluded,  and  D.  will  be  enti- 
tled to  the  money.  As  an  example  of  this  : — 

John  Cree,  after  bequeathing  several  annuities,  proceeded,  "  And 
the  first  annuities  of  the  great  ones  which  falls  in,  I  desire  may  de- 
volve upon  the  eldest  child,  male  or  female,  of  William  Harwood  for 
life."  He  then  gives  directions  relative  to  the  interest  of  his  pro- 
perty in  the  event  of  its  sufficiency  or  insufficiency  to  answer  the  an- 
nuities ;  and  bequeathed  the  annuities  as  they  fell  in,  except  two,  to 
the  surviving  annuitants.  Upon  the  death  of  the  survivor  he  gave 
the  whole  property  to  the  heirs  male  of  Philip  Francis,  and  in  de- 
fault of  issue,  to  the  female  branch  of  the  family  of  Philip  Francis. 
Two  annuitants  of  2001.  and  3001.  died  a  few  years  after  the  testa- 
tor ;  and  Clara,  the  only  legitimate  child  of  William  Harwood, 
claimed  the  latter  annuity,  though  not  born  till  after  the  death  of 
the  first  annuitant ;  but  her  claim  was  disa^lowed(s)  upon  the  au- 
thority of  the  case  of  Devisme  v.  Mello,  before  stated. 

The  principle  which  founded  the  last  decision  seems  to  be  this  ; 
that  if  a  child,  not  in  esse  when  the  will  is  made,  be  described  and  in- 
tended to  take  a  testamentary  gift,  upon  the  death  of  a  person,  and 
there  are  subsequent  executory  limitations  of  the  property,  and  the 

(»)  Godfrey  V.JJavis,  6  Ves.  43.  48. 


62  Description  of  Legatees.  [Cn.  II. 

child  should  not  be  born  till  after  the  person's  decease,  he  will  not  be 
permitted  to  claim  the  legacy  ;  for  the  policy  of  law  is  in  favour  of 
vested  interests ;  and  the  law  will  not  in  this  case  suspend  the  rights 
of  subsequent  legatees  on  account  of  the  possibility  of  a  prior  legatee 
coming  into  existence  who  would  be  entitled,  but  who,  by  not  being 
in  esse  to  take  in  succession,  was  incapable  of  accepting  the  bequests 
at  the  period  intended  by  the  testator. 

The  cases  which  have  been  stated  are  sufficient  to  establish  the 
rule  before  mentioned  in  regard  to  the  admission  or  exclusion  of  after- 
born  children.  And  the  authorities  which  have  been  determined  in 
conformity  with  them,  are  referred  to  in  note(£). 

But  here  we  may  remark,  as  in  the  instances  before  produced,  that 
where  a  testator's  intention  is  clear,  that  all  the  children,  a  specified 
individual  may  ever  have,  shall  participate  in  a  legacy  given  to  them, 
upon  the  contingency  of  some  third  person  dying  before  a  particular 
period,  and  that  contingency  happens ;  in  such  a  case  not  only  the 
children  in  existence  at  the  happening  of  the  contingency  shall  be 
entitled,  but  those  also  who  come  into  esse  during  the  life  of  their 
parent,  but  after  the  happening  of  such  contingency. 

Thus  in  the  case  ofHutcheson  v.  Jones,(u)  in  which  Edith  Hutche- 
son, being  entitled  to  the  reversion  of  a  moiety  of  freehold  estates, 
expectant  on  the  death  of  William  her  father,  bequeathed  500Z.  out 
of  that  estate  (which  she  devised  to  her  sister  Jinn  Jones]  to  her  niece 
Maria  Hutcheson,  daughter  of  her  brother  Robert ;  to  be  paid  when 
convenient  to  Jinn  Jones,  with  interest  from  three  months  after  the 
testatrix's  death.  And  after  such  payment  she  directed  the  money  to 
be  placed  at  interest  and  paid  to  Maria  Hutcheson  upon  her  marriage, 
or  at  the  age  of  twenty-one.  "  And  should  Maria  not  survive  either  of 
those  periods,  and  there  be  no  child  orchildren  of  Robert  Hutcheson, 
then  the  testatrix  would  have  the  500/.  revert  to  Jinn  Jones ;  but  in 
case  of  other  children  of  Robert  Hutcheson,  she  would  have  the 
said  sum  equally  divided,  share  and  share  alike."  Upon  the  death  of 
William  Hutcheson,  the  tenant  for  life,  Philip  Jones  and  his  wife 
Jinn  entered  into  possession  of  the  estates.  Afterwards  Maria  Hut- 
cheson, died  under  age,  and  without  ever  having  been  married.  Then 
Robert  Hutcheson  died,  leaving  a  son  William,  born  after  Maria's 
death,  and  the  plaintiff,  B.  Hutcheson,  a  child  of  a  second  mar- 
riage. The  question  was,  whether  William,  the  son,  and  the  plain- 
tiff, were  entitled  to  the  500/.  they  not  being  in  esse  at  the  death  of 
Maria  Hutcheson^  And  Sir  Thomas  Plumer,  V.  C.  determined  in 
the  affirmative. 

His  Honour,  in  detailing  the  reasons  for  his  decree,  observed,  that 
the  fund  was  reversionary,  which  was  a  strong  circumstance  :  that  it 
appeared  to  have  been  the  testatrix's  intention,  that  Mrs.  Jones 
should  not  take,  unless,  according  to  the  words  of  the  will,  "  there 
should  be  no  child  or  children  of  Robert  Hutcheson;"  that  he  could 
not  declare  the  fund  to  revert  to  her  on  the  death  of  Maria,  unless 

(0  Graves  v.  Boyle,  1  Atk.  509.  Haughton  v.  Harrison,  2  Atk.  329.  Middle- 
ton  v.  Messenger,  5  Ves.  136.  Pulsford  v.  Hunter,  3  Bro.  C.  C.  417.  Ay  ton  v. 
Ayton,  1  Cox.  327.  Paul  v.  Comfiton,  8  Ves.  375.  Walker  v.  Shore,  15  Ves. 
122.  Tebbs  v.  Carpenter,  I  Mad.  290.  Crone  v.  Odell,  1  Ball  &  Beat.  449. 

(M)  2  Madd.  124. 


SECT.  I.]  Description  of  Legatees.  63 

he  were  to  add  the  words  "  born  at  her  death  ;"  and  that  if  after-born 
children  were  excluded,  it  must  be  against  the  express  words  of  the 
will,  which  only  gave  the  money  to  Mrs.  Jones,  in  the  event  of  there 
being  no  child  or  children  of  Robert  Hutcheson. 

We  shall  next  consider — 

5.  The  instances  where,  in  order  to  answer  the  occasions  of  fami- 
lies, and  the  intent  of  parties,  "  younger  children"  have  been  con- 
strued to  mean, -such  children  only  as  were  not  entitled  to  the  family 
or  real  estate.  Accordingly,  in  cases  of  provisions  made  by  parents, 
or  persons  in  loco  parentum,  for  younger  children  either  by  deed  or 
will,  the  family  estate  being  limited  to  the  eldest  son  and  his  issue, 
remainder  to  his  brothers  and  their  issues  successively,  a  younger  bro- 
ther eventually  becoming  entitled  to  the  family  estate  before  the  por- 
tions were  payable,  has  been  considered  an  eldest  child,  so  as  to 
exclude  him  from  the  benefit  of  the  provision  for  youngest  children. 

The  leading  case  upon  this  subject  is  Chadwick  v.  Doleman;(x) 
in  which  Sir  Thorhas  Doleman  having  a  poweV  by  marriage  settle- 
ment to  appoint  portions  among  younger  children,  to  be  raised  within 
six  months  after  his  death,  appointed  2600/.  part  of  the  aggregate  sum 
to  Thomas,  describing  him  as  his  second  son.  The  eldest  son  after- 
wards died  without  issue  ;  upon  which  event  Thomas  becoming  the 
eldest,  and  succeeding  to  the  estate,  hi&  father  made  a  new  appoint- 
ment of  the  2600Z.  among  his  then  younger  children  ;  and  the  only 
question  was,  whether  the  first  or  second  appointment  should  stand  °? 
And  it  was  determined  in  favour  of  the  latter,  upon  the  ground,  that 
Thomas's  continuing  a  younger  child  up  to  the  period  of  the  pro- 
vision taking  effect  in  point  of  payment,  was  a  tacit  or  implied  con- 
dition, going  along  with  the  appointment,  and  that  as  such  condi- 
tion failed,  the  first  appointment  to  Thomas  must  be  considered 
nugatory,  and  that  therefore  the  second  appointment  must  be  estab- 
lished.^) 

The  last  case  was  approved  by  Lord  Hardwicke  in  that  of  Lord 
Teynham  v.  Webb,(z)  in  which  a  grandmother,  acting  in  loco  pa- 
rentis,  provided  portions  for  her  younger  grand-children  to  be  raised 
after  the  deaths  of  herself  and  daughter,  Lady  Dudley,  and  to  be 
subject,  as  to  the  proportions,  to  the  appointment  of  Lord  Teynham, 
the  father  of  those  children  ;  but  if  he  made  no  appointment,  the 
fund  was  to  be  divided  among  them  equally.  His  Lordship  had 
three  chiftlren,  Philip,  Mary,  and  the  plaintiff,  and  he  died  without 
making  an  appointment.  Philip,  the  eldest  son,  afterwards  died 
during  the  life  of  his  grandmother,  and  the  plaintiff  becoming  the 
eldest  son,  succeeded  to  the  title  and  estate.  The  question  was, 
whether  he  was  entitled  to  a  share  in  the  fund  provided  as  portions 
for  younger  children  *?  And  Lord  Hardwicke  determined  in  the 
negative  ;  observing,  that  the  father's  death  without  appointing 
made  no  alteration  in  the  rule  prevailing  in  those  cases ;  but  that 
the  same  condition  was  to  be  implied  in  the  direction  in  default  of 
appointment,  as  in  the  execution  of  the  power,  for  "  younger  chil- 
dren" could  not  be  construed  to  mean  one  thing  in  case  of  default 
of  appointment,  and  another  in  the  execution  of  the  power. 

The  two  last  cases  were  followed  by  Hall  v.  Hewer,(a)  Loder  v. 

(or)  2  Vern.  528.     (t/)See  2  Ves.  sen.  211.    (z)  Ibid.  198-210.    (a)  Ambl.  203. 


64  Description  of  Legatees.  [Ca.  II. 

Loder,(b)  before  Lord  Hardwicke ;  by  Broadmead  v.  Wood,(c]  be- 
fore Lord  Thurlow;  by  Lady  Lincoln  v.  Pelham,(d')  before  Lord 
Eldon,  a  case  resembling  that  of  Lord  Teynham  v.  Webb,  in  the 
circumstance  of  a  grandmother  being  the  provider  of  the  portions ; 
by  Bowles  v.  Bowles,(e)  before  the  same  Judge ;  and  by  Matthews  v. 
Paul,(f)  before  Sir  Thomas  Plumer.  In  all  these  cases  the  deter- 
minations agreed  with  the  two  last  stated. 

It  is  to  be  remarked,  that  the  several  authorities  before-mentioned 
and  referred  to,  were  cases  where  the  change  of  character  from  a 
younger  to  an  eldest  son  occurred  previous  to  the  period  when  the 
funds  became  distributable.  This  observation  is  important ;  for  if 
the  time  of  division  arrive  before  a  younger  become  an  eldest  child, 
distribution  will  be  considered  as  having  been  made  at  the  appoint- 
ed period,  and  then  the  change  in  the  description  of  the  younger 
child  will  have  happened  too  late  to  prejudice  the  interests  which 
he  took  while  he  continued  in  that  character, (g)  except  under  very 
special  circumstances,  an  instance  of  which  occurred  in  Leake  v. 
Leake,(h)  a  case  of  great  complexity.  It  appears  that  John,  a 
younger  son,  retained  that  description  at  the  death  of  his  father,  and 
as  such,  was  entitled,  with  other  younger  children  then  living,  under 
the  father's  will  and  codicil  (after  bringing  into  hotchpot  advance- 
ments made  to  him  and  them  by  their  father  during  his  life,  so  as  to 
place  all  of  them  upon  a  perfect  equality,)  to  a  share  of  the  father's 
residuary  estate,  which  was  so  given  ad  to  be  distributable  among 
younger  children  at  the  father's  death,  and  which  was  accordingly 
so  divided  by  their  mother.  After  this,  and  while  the  mother  was  in 
existence,  John  became  an  eldest  son,  and  succeeded  to  estates  charg- 
ed by  marriage  settlement  with  portions  for  younger  children  to  be 
raised  after  the  mother's  death,  the  amount  of  each  child's  share  to 
be  regulated  by  advancements  which  might  have  been  made  to  them 
by  their  father,  whilst  living,  as  directed,  in  regard  to  his  residuary 
estate  given  by  his  will  and  codicil.  John,  notwithstanding  his 
change  of  character  in  the  life-time  of  his  mother,  from  a  younger  to 
an  eldest  child,  was  directed  by  Lord  Eldon  to  be  considered  as  a 
younger  child  in  the  account  to  be  taken  among  the  younger  chil- 
dren ;  thus  necessarily  entitling  him  (though  no  longer  a  younger, 
but  the  eldest)  to  a  share  of  the  money  now  to  be  raised  for  younger 
children  under  the  settlement,  the  mother  being  dead ;  and  also 
bringing  again  into  account  the  residuary  estate  long  before  distri- 
butable, and  distributed  while  John  was  one  of  the  younger  children  : 
two  circumstances,  which,  taken  in  the  abstract,  would  have  shaken 
the  rules  before  considered  to  be  established  by  preceding  cases. 
But  Lord  Eldon  formed  his  opinion  and  judgment  upon  the  father's 
intention  apparent  in  his  settlement,  will,  and  codicil,  to  provide  and 
make  equal  provision  for  all  his  younger  children,  as  well  those  liv- 
ing at  his  own  as  at  his  wife's  death,  and  who,  with  that  view,  had 
disposed  of  the  whole  of  his  property  in  relation  to  the  portions  to 
be  raised  under  the  settlement ;  an  equality  that  could  not  be  at- 

(£)  2  Ves.  531.  (c)'l  Bro.  C.  C.  77.  (d)  10  Ves.  166-172. 

!    M  10  Ves.  177.  and  see  Savage  v.  Carroll,  1  Ball  &  Beat.  265. 

(/)  2  Wils.  C.  C.  64.  (V)  1  Ball  &  Beat.  278.  2  Ves,  sen.  211.  IVindham. 

v.  Graham,  1  Russ.  C.  C.  331.  (A)  10  Ves.  477. 


SECT.  I.]  Description  of  Legatees.  65 

tained  without  John's  accounting  with  the  other  younger  children 
for  the  share  he  received  of  his  father's  residuary  estate,  and  the 
advancements  made  to  him  as  a  younger  child ;  for  if  those  ad- 
vancements exceeded  his  portion  by  settlement,  the  difference  was 
either  to  be  supplied  to  the  other  children  out  of  his  share  of  the 
residue,  or  the  perfect  equality  designed  by  the  father  must  have 
been  disappointed.  This  case  is  therefore  an  exception  only  to  the 
general  rules  before  stated ;  and  it  was  so  considered  by  Lord  Man- 
ners, Chancellor  of  Ireland,  in  Savage  v.  Carrol.(i) 

6.  When  an  Eldest  or  only  child  considered  a  Younger. 

Every  child  but  the  heir  is  looked  upon  as  a  younger  child  in  a 
Court  of  Equity.  On  which  principle  it  is,  that  an  "  eldest  daugh- 
ter," destitute  of  a  provision,  has  been  considered  a  younger  child, 
to  answer  the  general  intention,  although  not  literally  falling  within 
the  description. 

Accordingly  in  Beale  v.  Beale,(k)  A.  being  tenant  for  life  of  an 
estate,  remainder  to  such  woman  as  he  should  marry,  remainder  to 
his  first  and  other  sons  in  tail  male,  with  remainder  to  B.  his  bro- 
ther in  fee,  was  empowered  to  charge  the  land  with  2000Z,  for  the 
portions  of  younger  children  living  at  his  death.  A.  married,  and 
had  issue  two  daughters,  but  no  son,  and  the  second  daughter  was 
in  venire  sa  mere  at  his  death.  He  charged  the  estate  by  will  with 
2000Z.  for  those  two  children,  payable  at  their  ages  of  twenty-one. 
And  it  was  objected,  that  the  eldest  daughter  could  not  claim  any 
part  of  the  money,  because  she  was  not  a  younger  child ;  and  that 
the  other  had  no  title,  as  she  was  not  born  at  her  father's  death. 
But  Lord  Harcourt,  C.  determined  in  favour  of  both  of  them,  on  the 
ground  that  the  estate  being  the  property  of  B.  the  remainder-man, 
the  daughters  were  unprovided  for,  and  in  such  a  case  the  eldest 
daughter  was  to  be  considered  in  equity  a  younger  child ;  and  her 
sister  being  in  ventre  sa  mere  at  her  father's  death  was  to  be  regard^ 
ed  as  a  child  living  at  that  period. 

So  in  Butler  v.  Duncombe,(l)  Lord  Parker,  C.  decided  where  the 
only  issue  of  the  marriage  was  a  daughter,  that  she  was  entitled  to  a 
portion  provided  for  younger  children,  as  otherwise  she  would  have 
been  left  destitute,  the  real  estate  descending  in  another  channel. 

Lord  Hardwicke  made  a  similar  decree  in  Heneage  v.  Hunloke,(m) 
a  case  attended  with  this  particularity,  that  a  settlement  was  made 
of  freehold  houses  to  uses,  which,  according  to  articles  preceding 
the  marriage,  ought  to  have  been  trusts.  By  them,  13001.  were 
directed  to  be  invested  in  South  Sea  annuities,  in  trust  after  the 
death  of  the  surviving  parent  for  the  younger  child  or  children.  The 
only  issue  of  the  marriage  were  a  son  and  daughter;  and  his  Lord- 
ship observed,  that  the  present  case  differed  from  preceding  autho- 
rities in  this  particular,  that  the  limitations  were  legal,  and  his  re- 
collection furnished  him  with  no  instance  where  a  Court  of  Equity, 
under  such  a  circumstance,  adopted  the  construction  of  an  eldest 
daughter  or  child  being  considered  a  younger.  For  the  limitation 
being  legal,  must,  as  he  conceived,  receive  the  same  construction  in 
equity  as  in  a  court  of  law ;  and  since  at  law,  he  doubted  whether 

(0  1  Ball  &  Beat.  279.  (*)  1  P.  Will.  244.  (/)  1  P.  Will.  449-451. 

(m)  2  Atk.  456.  and  see  Pierson  v.  Garnet,  2  Bro.  C.  C.  38-47.  S.  P. 
VOL.  I.  I 


66  Description  of  Legatees.  [Cn.  II. 

an  eldest  child  would  be  permitted  to  recover  under  a  limitation  to  a 
younger;  his  opinion  seems  to  have  been,  that  had  the  question 
rested  upon  the  settlement  alone,  a  Court  of  Equity  could  not  have 
applied  its  rule,  before  mentioned,  where  the  property  was  equitable, 
so  as  to  give  the  houses  to  the  eldest  child  under  a  limitation  to  a 
younger.  But  Lord  Hardwicke  surmounted  this  objection  by  re- 
ferring to  the  articles,  which  were  executory,  and  ought  to  be  per- 
formed according  to  the  intention  of  the  parties,  which  was  to  pro- 
vide for  all  the  children,  except  an  eldest  son ;  a  construction  which 
entitled  the  daughter,  though  in  seniority  the  eldest  child,  and  his 
Lordship  added,  that  the  Court  would  rectify  the  mistake  in  prepa- 
ration of  the  settlement. 

7.  The  principle  which  entitles  a  daughter,  who  is  the  eldest 
child,  to  a  portion  provided  for  a  younger,  will  enable  an  "  eldest 
son"  to  claim  a  portion  as  a  younger  child,  when  the  family  estate 
is  given  from  him,  or  he  is  otherwise  unprovided  for. 

Thus  in  Emery  v.  England,(n)  John  England  bequeathed  to  his 
brother  and  sister,  Joseph  and  Sarah,  all  his  effects,  if  his  sister 
Mary  had  no  child  at  his  death,  or  within  a  year  afterwards;  but  if 
she  had  any,  such  child  or  children  at  either  of  those  periods,  he 
gave  one-third  of  his  property  to  the  youngest.  The  other  two- 
thirds  he  gave  to  Joseph  and  Sarah  equally,  with  benefit  of  survivor- 
ship, between  them,  if  either  died  before  him,  unless  Sarah  had  a 
child  or  children,  in  which  event,  her  third  was  to  belong  to  her 
youngest  child,  otherwise  to  her;  and  Joseph's  third  was  to  be 
divided  between  Sarah  or  her  youngest  child,  and  Mary's  youngest 
child.  John  was  the  only  child  of  Mary  living  at  the  testator's 
death.  She  had  other  children,  but  none  of  them  were  born  within 
a  year  after  the  decease  of  the  testator,  and  were  therefore  excluded. 
The  question  was,  whether  John,  though  the  eldest  child,  could 
claim  the  third  bequeathed  to  the  youngest  child  of  Mary.  And 
Lord  Rosslyn,  without  argument,  decided  in  the  affirmative. 

The  last  is  a  case  in  which  the  provision  was  made  by  a  collateral 
relation,  intending  to  provide  for  all  the  members  of  his  family,  and 
therefore  to  be  considered  as  placing  himself  in  loco  parentis.  Such 
also  was  the  case  next  to  be  stated,  and  *the  Court  alluded  to  the 
distinction  to  be  attended  to  when  the  provisions  are  made  by  a 
stranger  for  younger  children,  and  by  parents  or  collateral  relations, 
whose  duty  and  intentions  are  to  provide  for  the  several  branches  of 
their  families. 

The  case  alluded  to  is,  Duke  v.  Doidge,(o)  in  which  Richard 
Doidge  the  elder,  and  Richard  his  eldest  son,  created  a  term  of 
1500  years  in  an  estate,  to  commence  from  their  deaths  without 
issue  male,  in  trust,  if  Thomas  (Richard  the  elder's  brother)  then 
had  one  or  more  children,  to  raise  portions  for  them,  not  exceeding 
1500Z.,  as  the  surviving  Richard  should  direct,  and  in  default  of 
appointment,  to  raise  that  sum  for  such  children  in  equal  shares, 
payable  at  the  end  of  six  months  after  the  term  began ;  but  if  no 
such  younger  children  were  living  at  the  commencement  of  the 
term,  &c.  it  was  to  be  surrendered.  The  estate  was  limited  upon 

(n)  3  Ves.  232.  (o)  2  Ves.  sen.  203.  in  a  note. 


SECT.  I.]  Description  of  Legatees.  67 

the  determination  of  the  term  to  the  use  of  such  son  of  Thomas  as 
the  two  Richards  or  the  survivor  should  appoint;  and  in  default  of 
such  issue  or  appointment,  to  the  first  and  other  sons  of  Thomas 
successively  in  tail  male;  remainder  to  the  right  heirs  of  Richard 
the  elder.  The  last-named  Richard  and  his  brother  Thomas,  died 
before  Richard  the  younger,  who  limited  the  estate  after  the  deter- 
mination of  the  term  to  Richard,  Thomas's  third  son,  in  tail  male, 
and  then  'died  without  issue,  or  appointing  any  sum  to  be  raised 
under  the  term  for  the  younger  children  of  Thomas.  The  children 
of  Thomas,  when  the  term  commenced,  were  four ;  George,  Robert, 
Richard  (the  third  son  to  whom  the  estate  was  limited,)  and  Ann. 
George,  although  the  eldest  son,  claimed  a  share  of  the  1500Z.  as  a 
younger  child,  and  the  validity  of  his  title  was  the  only  question. 
The  Court  determined  in  his  favour. 

In  the  last  case  the  Court  said,  it  did  not,  as  between  parent  and 
child,  consider  the  words  "  elder,"  or  "  younger,"  and  that  an  eldest 
child  unprovided  for,  should  take  as  a  younger'  Also,  that  there 
was  no  difference  in  this  respect  when  the  provision  proceeded  from 
a  collateral  relation  intending  to  provide  for  all  the  branches  of  his 
family,  as  Richard  the  elder  clearly  meant  to  do  in  the  present  in- 
stance. 

It  appears  from  th«  PRSPS  which  have  been  stated  and  referred  to, 
that  the  persons  settling  or  bequeathing  to  younger  children,  were 
either  their  parents  or  relations,  who  may  be  considered  in  loco  pa- 
rentis,  and  intending  to  provide  for  all  the  children  of  the  person 
described.     The  Court,  therefore,  rejected  the  words  "  younger"  or 
"  youngest,"  "  elder"  or  eldest,"  for  the  purpose  of  letting  in  a 
child  not  answering  the  description,  who  would  otherwise  have  been 
unprovided  for,  contrary  to  the  intention  of  the  person  whose  duty 
it  was  to  have  left  it  a  maintenance,  or  of  the  person  who  had  taken 
upon  himself  the  performance  of  that  obligation.  But  when  there  is 
no  such  relation  between  the  donor  or  devisor  and  the  children,  either 
real  or  assumed,  it  may  be  inferred  from  several  of  the  following 
cases,  that  a  Court  of  Equity  will  require  a  child  claiming  part  of  a 
sum  bequeathed  to  younger  children  to  answer  the  description.  Such 
was  the  opinion  of  Lord  Hardwicke  in  Hall  v.  Hewer,(p)  after  the 
case  had  been  argued  before  him,  and  which  was  to  the  following 
effect : — Robert  Hewer  devised  lands  to  trustees  for  a  term  of  years, 
to  raise  G,OOOZ.  which,  by  a  codicil,  he  directed  to  be  paid  to  the 
younger  children  of  a  Mr.  Hall,  if  his  brother  John  Heiver  died  with- 
out children.     He  devised  his  real  estate  to  John  Hewer  for  life,  re- 
mainder to  John's  first    and  other  sons  in  tail   male,  remainder 
to  daughters  in  tail,  with  remainder  to  Humphrey,  second  son  of 
John  Hall,  in   fee.     James   the   eldest  son  of  Hall,  died  before 
John  Hewer,  who  also  died  without  children,  so  that  Humphrey 
became  the  eldest  son  of  Hall;  and  he  nevertheless  claimed  a 
part  of  the  6,OOOZ.  bequeathed  to  Hall's  younger  children.     But 
Lord  Hardwicke  determined,  that  as  Humphrey  became  an  eldest 
son  before  the  60001.  were  distributable,  he  was  excluded.     And 
upon  it  being  urged  at  the  bar,  that  Humphrey  was  to  be  con- 

(p)  AmbL  203. 


68  Description  of  Legatees.  [Cii.  II. 

sidcred  as  an  eldest  son,  quoad  hoc,  because  the  testator  had  given 
to  him  the  inheritance  of  the  estate,  his  Lordship  said,  "  there  was 
no  case  where  the  Court  had  considered  a  younger  child  as  an 
eldest ;  but  between  parent  and  child,  or  persons  who  stood  in  loco 
parentis."  His  Lordship's  observation  in  regard  to  preceding  cases 
seems  to  be  correct;  and  it  does  not  appear  that  any  subsequent 
authority  has  impeached  his  opinion  upon  this  subject. 

The  same  principle  which  leads  a  Court  of  Equity  to  consider  a 
younger  child  an  eldest,  or  an  eldest  child  a  younger,  also  induces 
it  to  overlook  other  descriptions  applied  to  children  which  they  ac- 
cidentally do  not  answer,  where  a  parent  intends  to  provide  for  all 
his  offspring.  If  then  a  father  bequeath  a  portion  to  a  child  in  ventre 
sa  mere,  by  the  terms  "  posthumous  child,"  and  he  happen  to  sur- 
vive its  birth,  the  accident  will  not  deprive  the  infant  of  the  intend- 
ed provision. 

This  was  determined  in  Jaggard  v.  Jaggard,(q)  where  a  testator 
being  indisposed,  and  his  wife  enceinte,  made  his  will,  and  gave  to 
a  daughter  then  living,  15001.  but  if  his  wife  should  have  a.posthu- 
mous  daughter,  it  was  to  receive  5001.  of  the  1500i.  The  wife 
having  been  delivered  of  a  daughter  during  the  life  of  the  testator, 
which  prevented  the  child  from  answering  the  description  of  posthu- 
mous, the  question  was,  whether  she  was  entitled  to  the  500J.1?  And 
Lord  Somers  declared,  that  the  second  daughter,  although  bora 
during  the  life  of  her  father,  was  to  be  considered  a  posthumous 
child  within  the  meaning  of  the  will. 

But  in  general  no  rule  is  better  settled,  than  that  legatees  must 
answer  the  description  and  character  given  of  them  in  the  will ;  so 
that  a  bequest  to  the  seventh  child  of  B.  will  not  entitle  an  eighth, 
who,  by  the  death  of  the  seventh  child  before  the  testator,  becomes 
the  seventh. 

This  was  carried  to  a  great  extent  in  the  case  of  West  v.  The 
Lord  Primate  of  Ireland,(r)  in  which  the  testator  bequeathed  by 
codicil  in  these  words ;  "  I  desire  that  my  executor  would  at  his 
decease  bequeath  100  guineas  to  Lord  Cantalupe  for  the  use  of  his 
seventh  or  youngest  child,  in  case  he  should  not  have  a  seventh 
living."  His  Lordship  had  six  children  at  the  date  of  the  codicil, 
and  another,  born  previous  to  the  codicil,  was  then  dead.  Two 
months  after  the  testator's  death,  Lord  C.  had  another  son  born, 
whom  he  named  Septimus,  and  afterwards  other  children  came  into 
esse,  the  youngest  of  which  was  called  Matilda.  The  question  was, 
whether  Septimus,  or  Matilda,  the  youngest  child  of  Lord  C.  was 
entitled  to  the  legacy?  And  Lord  Thurlow  was  of  opinion,  that  as 
Septimus  was  in  fact  the  eighth  child,  he  could  not  take  by  the  de- 
scription of  seventh.  He  therefore  decreed  the  money  to  Matilda; 
a  decree  which  he  affirmed  upon  a  re-hearing. 

It  is  presumed  that  the  last  must  be  considered  an  exceedingly 
strong  case,  when  the  number  of  children  Lord  Cantalupe  had  at 
the  date  of  the  codicil,  and  the  prospective  nature  of  the  bequest, 
are  contemplated.  The  sense  in  which  the  testator  used  the  word 
seventh  cannot  be  doubted.  It  was  not  in  relation  to  the  number  of 

(?)  Pre.  Ch.  177.  (r)  3  Bro.  C.  C.  148.  2  Cox.  258.  &  C. 


SECT.  I.]  Description  of  Legatees.  69 

children  his  Lordship  might  have  had  previously  to  the  codicil,  but 
a  seventh  in  reference  to  the  number  living  when  that  instrument  was 
made,  which  were  six.  Septimus,  therefore,  appears  to  have  been 
the  person  designated  and  intended  by  the  testator ;  and  in  this  view 
of  the  case  he  answered  the  description  of  seventh  child  of  Lord  C. 
if  he  should  have  one.  If  these  remarks  be  just,  probably  a  similar 
case  would  at  present  receive  a  different  determination. 

Of  such  importance  is  it  for  a  legatee  to  answer  the  terms  of  the 
bequest,  that  if  he  do  so,  he  may  even  make  a  good  title  to  the 
legacy  or  portion,  notwithstanding  it  may  appear  contradictory  to  the 
testator's  intention.  An  instance  of  this  occurred  in  the  following 
case  : 

In  Trqfford  v.  Jlshton,(s]  Mr.  Vavasor  devised  all  his  estate  in 
trust  for  his  daughter  for  life,  remainder  to  her  second  son  to  be  be- 
gotten in  tail  male,  and  so  to  every  younger  son ;  remainder  to  her 
eldest  daughter,  and  the  first  son  of  her  body ;  the  testator  apologizing 
for  omitting  the  eldest  son  from  the  expectation  he  entertained  of  his 
daughter  marrying  so  prudently  as  to  ensure  a  provision  for  such 
son.  The  daughter  married  Sir  Ralph  Jlshton,  and  had  children, 
Edmund,  the  eldest,  Richard  and  Ann  Trafford.  Edmund  died 
shortly  after  his  birth,  and  then  Richard  was  born,  who  was  the  only 
and  eldest  son  of  Lady  Jlshton.  The  question  was,  whether  he  was 
entitled,  under  the  description  "  second  son,"  to  Mr.  Vavasor's 
estate  ^  And  it  was  determined  in  the  affirmative  ;  the  Chancellor 
observing,  that  second  son  was  second  in  the  order  of  birth :  Richard 
therefore  answering  that  description,  was  entitled,  although  it  was 
contrary  to  the  testator's  intention.  ^_VJ^L^^J^.  X- 

We  shall  proceed  in  the  next  place  t6  consider — 

8.  When  grand-children,  &c.  may  and  may  not  take  under  the 
word  "  children." 

The  word  "  children"  does  not,  ordinarily  and  properly  speaking, 
comprehend  grand-children,  or  issue  generally.  Their  being  in- 
cluded in  that  term  is  only  permitted  in  two  cases,  viz.  from  necessity, 
which  occurs  where  the  will  would  remain  inoperative,  unless  the 
sense  of  the  word  "  children"  were  extended  beyond  its  natural  im- 
port :  and  where  the  testator  has  clearly  shown  by  other  words,  that 
he  did  not  intend  to  use  the  term  "  children"  in  its  proper  actual 
meaning,  but  in  a  more  extensive  sense.  By  these  tests  questions 
upon  the  present  subject  are  to  be  examined  and  determined.  It 
will  therefore  be  convenient,  for  the  sake  of  perspicuity,  to  begin 
with  considering — 

FIRST,  where  the  word  "  children"  was  extended  beyond  its  natural 
import  from  necessity. 

Referrible  to  this  head  is  Wylde's  case,(£)  where,  upon  a  devise  to 
a  man  and  his  children,  it  was  held,  if  there  were  no  children  at  the 
date  of  the  will,  the  father  would  take  an  estate  tail;  and  children 
would  mean  issue ;  for  it  was-  evident  something  was  intended  for 
children :  but  none  being  in  esse,  they  could  take  nothing  except 
through  the  father ;  and  he  could  transmit  to  them  nothing,  unless 
he  had  an  estate  of  inheritance.  It  was  necessary,  therefore,  to  con- 

(s)  2  Vern.  660.    1  Eq.  Ca,  Abr.  213,  pi.  8.  5.  C.  (/)  6  Rep.  16. 


70  Description  of  Legatees.  [Cn.  II. 

strue  the  word  "  children"  issue,  on  account  of  the  general  apparent 
intention,  (w) 

It  was  necessity,  therefore,  that  in  the  last  case  converted  the 
word  "  children"  into  a  word  of  limitation ;  a  construction  never  to 
be  put  upon  that  term  except  for  the  purpose  of  giving  operation  to 
the  will,  and  effectuating  the  testator's  intention ;  for  the  word 
"  children"  is  naturally  one  of  purchase,  as  observed  by  Lord  Hard- 
wicke  in  Bujfarv.  Bradford,(x)  and  so  he  determined  in  that  case,  in 
declaring  that  a  bequest  made  to  a  mother  and  her  children  (she 
having  a  child  after  the?  date  of  the  will,  who  survived  the  testator) 
did  not  lapse  by  the  mother's  death  in  the  life-time  of  the  devisor,  but 
belonged  to  the  child  ;  upon  the  principle,  that  the  legatees  took  as 
purchasers  in  joint  tenancy  ;(y]  a  judgment  which  could  not  have 
been  pronounced  if  the  child  had  taken  by  representation  through  its 
mother. 

SECONDLY,  instances  where  a  testator,  by  using  the  words  "  chil- 
dren" and  "  issue"  indiscriminately,  showed  his  intention  to  use  the 
former  term  in  the  sense  of  issue,  so  as  to  entitle  grand-children,  &c. 
to  take  under  it. 

In  Wythe  v.  Blackman,(z)  Colonel  Thurston,  by  a  voluntary  deed, 
limited  real  estate  after  the  death  of  himself  and  nephew  John,  and 
failure  of  estates  in  tail  male  to  John's  first  and  other  sons,  to  four 
persons,  Lady  Chacy,  Mrs.  Wythe,  and  Mrs.  Blackman  (his  three 
sisters,)  and  the  fourth  was  his  niece  (daughter  of  a  deceased  bro- 
ther,) to  sell  and  divide  the  money  and  mesne  profits  among  them- 
selves (naming  them,)  or  the  respective  issues  of  their  bodies,  if  they 
or  any  of  them  should  be  dead,  upon  the  failure  of  such  issue  male  of 
John,  viz.  to  each  of  them,  or  their  respective  children,  a  fourth  part. 
But  if  any  of  them  should  be  dead  without  issue,  on  such  failure  of 
issue  of  John,  then  to  the  survivors  or  their  respective  children  equal- 
ly, if  any  of  them  should  be  dead  leaving  issue.  John  survived  the 
testator,  and  died  after  being  in  possession  of  the  estate,  and  without 
issue.  The  three  sisters  and  niece  died  before  John,  the  niece  leav- 
ing no  issue  ;  but  at  the  death  of  John,  Lady  Chacy  had  three  chil- 
dren, Mrs.  Wythe  both  children  and  great  grand-children,  and  Mrs. 
Blackman  grand-children  only.  One  of  the  questions  was,  whether 
the  children  of  Lady  Chacy  and  of  Mrs.  Wythe  were  entitled  to  have 
the  whole  estate  divided  among  them  in  two  shares ;  or  whether  the 
grand-children  of  Mrs.  Blackman,  and  the  great  grand-children  of 
Mrs.  Wythe,  were  entitled  to  participate  with  them  °l  A  question 
turning  upon  the  point,  whether  the  import  of  the  word  "  issue"  was 
to  be  restrained  by  that  of  "  children,"  or  the  import  of  the  word 
"  children"  was  to  be  enlarged  by  that  of  "  issue"  *?  And  Lord  Hard- 
wicke  determined,  that  children,  grand-children,  and  great  grand- 
children, were  collectively  entitled. 

His  Lordship  founded  his  decree  upon  the  special  circumstances 
of  the  case.     He  commented  upon  the  great  length  of  time  which 

(«)  10  Ves.  201.  (x)  2  Atk.  221. 

(y)  See  chap.  8.  on  lapsed  legacies,  and  title  "Joint  Tenants." 

(z)  1  Ves.  sen.  196.  reported  in  Ambl.  555.  by  the  names  of  Wythe  v.  Thurls- 

ton,  and  stated  by  Lord  Mvanley  from  Reg.  Lib.  in  Davenport  v.  Hanbury.  3 

Ves.  258. 


SECT.  I.]  Description  of  Legatees.  71 

might  have  elapsed  before  the  trust  fund  became  divisible,  and  on 
the  apparent  intention  of  the  settler,  not  only  to  provide  for  his  sis- 
ters and  niece,  if  living,  when  the  issue  male  of  John  failed,  but  if 
dead,  then  for  their  respective  descendants  however  remote,  who 
should  be  in  existence  at  that  time.  Besides  the  first  limitation  to 
the  sisters  and  niece  was  not  to  children,  but  issue  as  corresponded 
with  the  intention.  The  subsequent  adoption  of  the  word  "  chil- 
dren," was  used  in  the  same  sense  as  "  issue,"  which  appeared  from 
the  limitation  to  survivors ;  that  being  made  to  depend  upon  any  of 
the  sister's  dying  without  leaving  issue,  the  very  word  used  in  des- 
cribing the  failure  of  the  lineal  descendants  of  John;  a  circum- 
stance showing  the  settler's  acquaintance  with  the  usual  import  of 
the  word  "  issue  ;"  and  that  he  annexed  to  it  the  same  meaning 
when  he  applied  it  to  John's  descendant's  and  to  those  of  his  sisters. 
Hence  it  appears  that  the  present  case  cannot  be  adduced  to  prove, 
that  the  word  "  children"  of  its  own  proper  import  includes  grand- 
children, &c.  as  well  as  children  of  the  persons  described.(a)  It  is 
only  authority  that  when  the  words  "  children"  and  "  issue"  are 
mentioned  promiscuously,  and  the  contents  of  the  instrument  show, 
that  the  term  "  children"  was  used  in  the  sense  of  "  issue,"  its  natu- 
ral import  will  be  enlarged  to  the  comprehending  of  all  such  indivi- 
duals as  are  entitled  under  the  latter  word. 

The  case  which  next  followed,  so  far  differs  from  the  preceding, 
that  the  first  and  direct  bequest  was  made  to  children  and  not  to  is- 
sue ;  but  they  agree  in  the  circumstance  of  the  limitation  over  be- 
ing made  dependant  upon  the  death  of  persons  without  issue ;  liv- 
ing at  the  happening  of  a  particular  contingency  :  a  limitation  clear- 
ly indicating  the  testator's  intention  to  annex  to  the  word  "  chil- 
dren" the  same  sense  as  he  had  given  to  the  word  "  issue." 

The  case  alluded  to  is  Gale  v.  Bennett,(b)  in  which  Mr.  Merttews 
having  four  daughters,  Hester,  Clara,  Mary,  and  Elizabeth,  devised 
real  and  personal  estates  to  Hester  for  life,  remainder  to  all  the  chil- 
dren of  her  body,  sons  and  daughters  as  tenants  in  common  in  fee, 
with  benefit  of  survivorship  if  any  of  the  sons  died  under  twenty- 
one,  or  daughters  before  at  that  age  or  marriage  :  and  in  default  of 
such  issue,  then  to  all  his  other  daughters  living  at  the  death  and 
failure  of  issue  of  Hester,  and  .the  child  or  children  of  his  other 
daughters  who  should  be  then  dead,  as  tenants  in  common  in  fee : 
but  if  none  of  his  daughters,  nor  any  issue  of  them  should  be  living 
at  the  before  mentioned  period,  he  limited  the  property  to  his  own 
right  heirs.  Hester,  the  tenant  for  life,  died  without  issue.  Clara, 
died  before  her,  and  there  were  only  grand-children  of  Clara  living 
at  the  death  of  Hester,  Mary  survived  Hester  ;  and  Elizabeth  died 
before  Hester,  leaving  two  children,  who  were  living  at  Hester's  de- 
cease. Lord  Camden  decided  upon  the  authority  of  the  last  case, 
that  grand-children  were  entitled  under  the  terms  in  the  will  ;(c) 
which  was  equivalent  to  a  declaration,  that  the  testator  used  the 
word  "  children"  in  the  same  sense  as  the  term  "  issue,"  a  term  suf- 
ficiently comprehensive  to  include  grand-children. 

The  case  next  in  succession,  was  determined  by  Lord  Mvanley, 


a)  See  3  Ves.  &  Bea.  68.  (£)  Ambl.  681. 

c)  See  Sir  William  Grant's  comments  upon  this  case,  3  Ves.  8c  Bea.  69. 


72  Description  of  Legatees.  [Cn.  II. 

and  arose  upon  a  very  obscure  will.  His  Lordship  was  probably 
guided  by  the  first  mentioned  authority  of  Wythe  v.  Blackman,  foun- 
ding his  decision  upon  the  indiscriminate  use  of  the  words  "  issue" 
and  "  children,"  and  the  intention  collected  from  the  context  of  the 
will,  that  the  term  "  children"  was  used  in  the  same  sense  as  "  issue." 

This  case  is  Royle  v.  Hamilton  ;(d)  there  Mr.  Hunter  gave  the 
following  legacies  :  "  I  give  to  the  children  of  William  Hunter,  late 
of,  &c.  that  is  to  say,  to  Captain  John  Hunter,  of  &c.  20001.  and  to 
his  issue;  to  his  sisters  or  their  issue  1000?.  each,  (viz.)  the  issue  of 
his  sister  Mable,  deceased,  Mrs.  Elizabeth  Holt,  wife  of  John  Holt, 
now  of,  &c. :  if  Mr.  Holt  should  survive  her,  I  will  that  he  have  the 
interest  of  that  share  for  life  ;  at  his  death,  to  the  surviving  children 
of  the  said  William  Hunter  ;  Mrs.  Mary  Davenport,  wife  of  the  Rev. 
Mr.  Davenport,  in  &c. ;  and  to  Mrs.  Rosana  Dixon,  wife  to  Mr. 
Dixon,  printer,  in  &c.  The  whole  sum  to  the  said  Captain  John 
Hunter  and  his  issue,  and  to  his  sisters  and  their  issue,  amounting  to 
60001. ;  if  any  lapse  to  be  divided  among  the  survivors."  Mrs.  Holt, 
after  surviving  her  husband,  died  without  issue,  before  the  testator. 
Mrs.  Dixon  also  died  during  the  testator's  life,  leaving  five  children, 
grand-children  of  William  Hunter.  And  it  was  one  of  the  ques- 
tions, whether  those  grand-children  were  entitled  to  a  share  of  the 
legacy  intended  for  Mrs.  Holt,  although  not  the  children  of  William 
Hunter,  in  the  strict  and  literal  sense  of  the  word  9  And  Lord  Jll- 
vanley  decided  in  the  affirmative ;  expressing  his  opinion  to  be 
founded  upon  the  words  "  the  whole  sum  to  the  said  Captain  John 
Hunter  and  his  issue,  and  to  his  sisters  and  their  issue." 

His  Lordship  in  pronouncing  judgment  in  the  last  case,  remarked 
that  the  word  "  children"  would  not  mean  grand-children,  unless 
their  parent,  the  object  of  the  description  were  dead.(e)  We  must 
also  except  these  instances,  where  the  will  shows  a  clear  intention 
to  embrace  issue  beyond  the  first  generation,  as  in  the  several  authori- 
ties before  stated.  The  authorities  on  the  present  subject  which 
which  remain  to  be  considered,  are— 

THIRDLY,  those  cases  wherein  it  was  determined,  that  grand-chil- 
dren, &c.  were  not  comprehended  in  the  word  "  children." 

Since  the  term  "  children"  does  not,  according  to  its  proper  signi- 
fication, extend  farther  than  to  immediate  descendants  of  the  person 
named,  and  since  as  a  general  rule,  it  is  necessary  that  legatees 
should  accurately  answer  the  description  of  the  bequest,  it  follows, 
that  if  there  be  a  child  or  children,  a  grand-child  cannot  be  admit- 
ted to  participate  in  a  fund  bequeathed  to  "  children."  In  the  Earl 
of  Orford  v.  Churchill,  it  was  said  by  Sir  William  Grant,  that  "  he 
never  knew  an  instance  where  there  were  children,  to  answer  the 
proper  description,  grand-children  were  permitted  to  share  along 
with  them."  A  proposition  undoubtedly  correct,  when  understood 
with  the  qualifications  before  mentioned,  as  appears  from  the  fol- 
lowing case : 

In  Crook  v.  Brooking,(f}  the  testator  vested  1500/.  in  trustees,  in 
trust  to  allow  Jinn  Crew  a  maintenance  out  of  the  interest  during 
her  husband's  life,  with  the  absolute  disposal  of  the  principal,  if  she 
survived  her  husband,  but  if  he  were  the  survivor,  the  money  was 

(d)  4  Ves.  437.      (<?)  See  3  Ves.  &  Bea.  69.    2  Vern.  108.      (/)  2  Vern.  107. 


SECT.  I.]  Description  of  Legatees.  73 

to  go  to  her  sister's  children,  as  she  should  advise.     Jinn  died  be- 
fore  her  husband,  without  giving  any  direction  as  to  the  15001. 
leaving  Grace,  her  only  sister,  who  at  Ann's  death  had  one  child, 
and  several  grand-children  in  existence.     And  although  Lord  Jef- 
feries  directed  the  fund  to  be  divided  between  the  only  child  and  the 
grand-children,  yet  the  Lords  Commissioners,  upon  rehearing  the 
•  cause,  reversed  the  decree,  declaring,  that  where  a  bequest  was  made 
to  children,  grand-children  could  not  participate  with  them. 

The  last  case,  which  must  have  been  considered  with  great  atten- 
tion, has  established  the  legal  sense  of  the  word  "  children,"  when 
standing  unexplained  by  any  thing  in  the  will,  and  there  are  chil- 
dren in  existence  to  take  under  it.  This  authority  has  been  refer- 
red to  and  acknowledged  in  subsequent  cases,  and  its  principle  was 
acted  upon  by  Lord  Alvanley,  M.  R.  in  the  following  instance : 

In  Reeves  v.  Brymer,(g)  Michael  Forster  bequeathed  to  his  wife 
the  interest  of  certain  bank  annuities  for  life,  directing  the  capital 
to  remain  in  the  same  stock  for  the  benefit  of  his  children  equally,  who 
should  be  living  at  the  death  of  his  wife.  He  also  made  a  similar 
disposition  of  a  leasehold  house.  The  wife  and  four  daughters, 
Sarah,  Mary,  Ann,  and  Elizabeth,  all  married  and  having  children, 
survived  the  testator ;  but  Mary  died  before  the  wife,  leaving  a 
child,  grand-child  of  the  testator,  who  was  living  at  the  death  of  the 
wife,  an  event  which  had  happened.  The  question  was,  whether 
the  grand-child  was  entitled  with  the  testator's  surviving  children, 
Sarah,  Ann,  and  Elizabeth  ?  And  Lord  Alvanley  determined  in  the 
negative,  remarking,  that  "children  may  mean  grand  children  where 
there  can  be  no  other  construction,  but  not  otherwise  *?" 

Consistently  with  the  two  preceding  authorities,  Sir  William 
Grant  decided  the  case  of  Radcliffe  v.  Buckley. (h) 

There  James  Buckley  bequeathed  his  residuary  personal  estate 
unto  all  the  legitimate  children  of  William,  Henry,  John,  and  Tho- 
mas Buckley,  and  Ann  Shaw,  his  late  brothers  and  sister,  in  equal 
shares  per  stirpes.  When  the  will  was  made  there  were  children 
and  grand-children  of  all  the  brothers.  Ann  Shaw  had  no  children 
then  living,  but  three  of  them  had  left  several  children,  one  of 
whom  died  before  the  date  of  the  will,  leaving  children,  so  that  at 
the  death  of  the  testator  the  claimants  were  children,  grand-children, 
and  great  grand-children ;  but  his  Honour  rejected  the  claims  of 
the  two  latter  classes  upon  the  principle  and  authorities  before 
stated. 

It  is  observable,  that  the  last  case  differs  from  the  preceding  au- 
thorities in  the  particular  of  Ann  Shaw  having  had  only  grandchil- 
dren and  great  grand-children  in  existence  at  the  date  of  the  will. 
It  was  therefore  contended  with  great  plausibility,  that  the  testator 
must  have  used  the  term  "  children"  in  the  enlarged  sense  of"  issue  ;" 
and  parol  evidence  was  produced  to  show  his  acquaintance  with  the 
state  of  Ann's  family  when  he  made  the  will ;  but  Sir  William  Grant 
paid  no  regard  to  such  testimony,  since  it  alone  was  inadmissible 
to  alter  the  construction  which  properly  belonged  to  the  word  "chil- 
dren." And  with  respect  to  the  will  itself  he  said,  that  as  there  was 

(£)  4  Ves.  692.  (A)  10  Ves.  195. 

VOL.  I.  K 


74  Description  of  Legatees.  [Cn.  II, 

no  expression  explanatory  of  the  term  "  children,"  indicating  the 
testator's  meaning  to  enlarge  tjie  legal  import  of  that  word,  and  since 
it  would  be  inconsistent,  in  the  absence  of  clear  intention,  to  con- 
strue "  children,"  (a  word  only  once  used)  in  two  different  senses 
when  applied  to  children  of  the  four  brothers,  and  when  to  children 
of  the  sister,  he  should  adhere  to  the  proper  construction  of  the 
word  throughout,  for  to  depart  from  it,  he  ought  to  be  perfectly 
certain  he  was  executing  the  testator's  intention,  a  certainty  that 
the  present  case  did  not  afford. 

The  next  case  that  occurs  upon  the  present  subject,  was  deter- 
mined by  the  same  Judge  who  decided  the  last.  It  is  an  instance 
of  the  words  "  children  and  grand-children"  not  being  enlarged  by 
the  mere  mention  of  the  term,  "  issue"  by  introduction  or  simple  re- 
cital, and  not  repeated  in  the  gift  or  in  the  limitation  over. of  the 
property  ;  the  Court  preferring  to  adhere  to  the  operative  part  of  the 
instrument  expressing  the  gift  to  be  made  to  children  and  grand- 
children, than  to  indulge  in  speculating  upon  the  intention  founded 
merely  on  inference  from  the  word  "  issue"  being  inserted  by  way  of 
recital  or  introduction  to  the  gift,  and  never  afterwards  resumed. 
Under  such  circumstances,  the  proper  meaning  of  the  word  children 
or  grand-children  will  not  be  extended  by  that  of  issue,  but  the  lat- 
ter will  be  considered  to  have  been  used  in  the  same  sense  as  chil- 
dren or  grand-children. 

The  case  alluded  to  is  the  Earl  of  Orford  v.  Churchill,(i)  in  which 
Charles  Churchill,  under  the  will  of  his  father  had,  in  the  event  "  of 
having  or  having  had  any  child  or  children  who  should  be  living,  or 
who  should  have  left  issue  living  at  his  death,"  a  power  to  appoint 
the  testator's  residuary  real  and  personal  estate,  "  to  and  for  all  or 
any  of  his  (Charles's)  children  and  grand-children  that  should  be  so 
living,  with  benefit  of  survivorship,  and  limitations  over  (for  the 
benefit  of  such  children  or  grand-children  as  he  should  direct  by 
deed  or  will ;"  and  in  default  of  appointment,  the  property  was 
limited  over  to  Harriet  Churchill,  in  the  event  of  Charles  dying 
without  leaving    a  child  or  grand-child.     Upon    the    marriage   of 
Charles  (after  the  testator's  death)  with  Lady  Walpole,  he,  by  deed 
of  appointment,  reciting  an  intention  to  provide  for  their  children 
and  issue,  directed  13,000f.  to  be  paid  out  of  the  estates  for  the  por- 
tions of  younger  "  children,  sons  and  daughters,"  at  the  usual  ages 
and  times,  with  benefit  of  survivorship  among  such  "  children,  sons 
or  daughters,"  as  should  die  before  their  shares  became  payable. 
And  if  there  were  an  eldest  son,  and  other  "  children,  sons  or  daugh- 
ters," such  eldest  son  was  to  have  30,0001.  out  of  the  said  funds. 
"  Provided,  if  any  child  or  children,  to  whom  any  sum  of  money  was 
appointed  by  the  deed,  happened  to  die  before  Charles,  leaving  any 
child  or  children  then  living,  the  portion  or  portions  before  appointed 
for  such  child  or  children  so  dying  during  the  life  of  Charles,  should 
go  to  such  of  his  and  their  children,  as  should  be  living  at  the  de- 
cease of  the  said  Charles."     There  were  seven  children  of  the  mar- 
riage, of  whom  a  son  named  Charles  was  the  eldest,  and  had  he 
lived,  would  have  been  entitled  to  the  30,0002. ;  but  he  died  before 
his  father,  leaving  three  children,  Henry,  William  and  Helen.   Hen- 

(i)3Ves.  &Bea.59. 


SECT.  I.]  Description  of  Legatees.  75 

ry  died  before  his  grandfather,  leaving  Charles  Henry  his  only  son, 
and  great  grand-child  of  the  testator.  William  also  died,  a  bache- 
lor, during  the  life  of  his  grandfather,  and  Helen  was  the  only  grand- 
child who  survived  her  father  Charles.  The  question  was,  whether 
Helen,  as  such  only  grand-child  living  at  the  death  of  her  father 
Charles,  was  alone  entitled  to  the  30,OOOZ.  or  whether  Charles  Hen- 
ry, the  great  grand-child,  was  entitled  to  share  with  her  that  sum, 
which  depended  on  the  previous  fact,  whether  in  the  terms  of  the 
will  and  appointment,  great  grand-children  were  comprehended  ; 
and  that  could  only  be  from  the  effect  of  the  word  "  issue"  introduc- 
torily  inserted  in  both  instruments.  Sir  William  Grant  decided 
against  the  right  and  claim  of  the  great  grand-child,  for  the  reasons 
before  detailed. 

It  must  be  obvious  to  every  reader  of  the  last  case,  that  the  testator 
and  his  son  had  only  the  children  and  grand-children  of  the  latter 
in  contemplation  when  the  will  and  appointment  were  made.  Both 
instruments  expressly  provide  for  those  two  classes  only;  and  al- 
though "  issue"  be  once  mentioned  in  each,  it  is  manifest  that  it  was 
used  in  the  sense  of  children  and  grand-children  ;  for  if  the  intention 
had  been  to  make  provisions  for  all  the  descendants  of  the  son,  it 
cannot  be  supposed  that  the  testator,  in  the  passage  of  the  will  which 
gives  the  power  of  making  such  provision,  and  the  son,  in  the  passage 
of  the  instrument  which  exercises  that  power,  should  omit  the  word 
".issue,"  and  expressly  confine  the  portions  to  children  and  grand- 
children. 

9.  The  case  last  stated  is  an  authority  over-ruling  the  apparent 
opinion  of  Lord  Northington  in  Hussey  v.  Berkeley  ^(k}  that  the 
word  grand-children,  would,  without  further  explanation,  compre- 
hend great  grand-children.  And  it  seems  but  reasonable,  that  if 
the  word  "  children"  do  not  include  grand-children,  as  we  have  seen, 
the  term  "grand-children"  will  not  comprise  children  next  to  them 
in  descent.  The  several  distinctions  which  have  been  mentioned 
in  regard  to  the  enlargement  of  the  word  "  children"  seem  applica- 
ble to  a  bequest  to  grand-children ;  so  that  if  it  appear  from  the 
will,  that  the  word  "  grand-children,"  was  not  used  in  its  proper 
sense,  but  for  the  purpose  of  embracing  all  the  descendants  of  all 
the  persons  described,  it  will  have  the  effect.  An  instance  of  this 
occurred  in  the  following  case  : 

In  Hussey  v.  Berkeley,(l)  Lady  Tyrconnel  having  several  grand- 
children and  great  grand-children,  bequeathed  to  Lady  Netterville 
and  Mrs.  Hussey,  two  of  her  grand-children,  IQOl.  each,  to  buy  rings  ; 
and  directed  her  executor  to  give  her  residuary  personal  estate,  as 
she  should  afterwards  appoint.  She  by  a  codicil  gave  legacies  to 
several  of  her  great  grand-children,  and  to  Lady  Dillon,  the  widow 
of  her  grandson.  She  also  gave  to  Miss  Hussey  (who  was  her  great 
grand-daughter)  by  the  description  of  grand-daughter,  specific  lega- 
cies ;  directing  the  residue  to  be  divided  among  her  grand-children 
named  therein.  Two  of  the  questions  were,  whether  great  grand- 

(£)  2  Eden.  196. 

(/)  Ibid,  and  reported  in  Ambl.  603,  under  the  title  of  Hussey  v.  Lady  Dillon. 
See  Shelley  v.  Bryer,  1  Jacob.  207,  as  to  grand  nieces  not  being  included  in  the 
word  niece. 


76  Description  of  Legatees.  [Ce.  II. 

children  should  take  a  share  of  the  residue  with,  and  under  the  de- 
scription of  grand-children,  and  whether  Lady  Dillon,  who  was  only 
a  grand-child  by  marriage,  was  entitled  under  the  description1?  Lord 
Northington  determined  in  favour  of  the  great  grand-children,  since 
the  testatrix  had  shown  the  sense  in  which  she  used  the  word  grand- 
children, in  giving  the  specific  legacies  to  her  great  grand-child 
Miss  Hussey,  by  the  description  of  grand-child.  But  with  respect 
to  the  claim  of  Lady  Dillon  as  a  grand-child  by  marriage,  his  Lord- 
ship said  it  had  no  foundation  ;  as  the  testatrix  intended  such  grand- 
children only  who  were  related  to  her  by  blood. 

The  next  subject  for  consideration  is — 

II.  Legacies  to  Natural  Children. 

It  is  a  maxim  of  the  common  law,  that  qui  ex  damnato  coitu  nas- 
cuntur  inter  liberos  non  computentur.  The  relation  of  a  natural 
child  to  its  father  is  not  acknowledged  before  its  birth,  for  the  law 
considers  him  quasi  nullius  filius.  The  above  maxim  is  founded  in 
general  convenience,  the  law  overlooking  a  particular  hardship 
when  in  competition  with  the  public  good;  and  the  wisdom  of  the 
rule  appears  from  the  very  great  inconvenience  and  indelicacy  there 
would  be  in  permitting  evidence  of  the  children  being  really  begot- 
ten by  the  same  individual.  Hence, 

1.  Natural  children  unborn  at  the  date  of  the  will,  cannot  take 
under  a  bequest  to  the  children  generally,  or  to  the  illegitimate 
children  of  A.  B.  by  Mary  D. 

The  difficulty  which  occurs  in  such  a  case  as  that  last  supposed, 
is,  how  the  indentity  of  the  father  can  be  ascertained.  That  he  was 
the  father,  decency  will  not  admit  the  proof;  consequently  there  is 
no  method  by  which  such  children  can  bring  themselves  within  the 
description  of  the  bequest,  (m) 

In  Metham  v.  the  Duke  of  Devon,(ri)  the  then  late  Earl  of  Devon, 
bequeathed  3000Z.  to  "  all  the  natural  children  of  his  son  the  late 
duke,  by  Mrs.  Heneage"  The  question  was,  whether  natural  chil- 
dren, born  after  the  will,  should!partake  of  the  legacy  ?  And  Lord 
Parker,  C.  decided  in  the  negative  ;  adopting  the  rule  laid  down  by 
Lord  Coke  in  his  Cornmentary,(o)  that  a  natural  child  cannot  take 
as  the  issue  of  a  particular  person,  until  it  has  acquired  the  reputa- 
tion of  being  the  child  of  that  person,  which  cannot  be  before  its 
birth. 

The  last  case  was  followed  by  Sir  William  Grant,  M.  R.  in  Earle 
v.  Wil8on.(p)  The  bequest  was  :  "  I  give  to  such  child,  or  children, 
if  more  than  one,  which  Mary  Mackarel  may  happen  to  be  enceinte 
of  by  me,"  such  sum  or  sums,  &,c.  Mary  had  a  daughter  born 
shortly  after  the  testator's  death,  who  claimed  under  the  above  be- 
quest ;  but  his  Honour  disallowed  the  claim,  because  the  law  would 
not  permit  a  natural  child,  unborn  at  the  date  of  the  will,  to  take 
under  the  description  of  a  child. 

2.  Sir  William  Grant  remarked,  in  deciding  the  case  just  stated, 
that  if  the  bequest  had  been  to  the  natural  child  of  which  a  particular 

(»z)  1  Meriv.  148.     J  Ves.  &  Bea.  446. 

(n)  1  P.  Will.  529,  &nd  see  Arnold  v.  freston,  18  Ves.  288. 

(o)  Co.  Litt.  3,  b.  (/z)  1  Ves.  &  Bea.  528. 


SECT.  II.]  Description  of  Legatees.  77 

woman  was  enceinte,  without  reference  to  any  person  as  the  father ; 
as  there  would  be  no  uncertainty  in  that  bequest,  it  would  probably 
be  supported. 

His  Honour's  opinion  has  been  since  established  by  a  decision 
of  Lord  Eldon,  in  the  case  of  Gordon  v.  Gordon.(q)  There  the 
form  of  bequest  was, — "  As  I  have  reason  to  believe  that  Jldrienne 
Maillet  is  pregnant  by  me,  I  give  to  her  501.  sterling  yearly,  &c.  I 
wish  the  child  of  which  she  is  now  pregnant,  to  be  sent  to  England 
and  educated,  as  George  Louis  (a  natural  child  of  the  testator,  to 
whom  by  a  former  codicil  he  gave  an  annuity  of  1001.  from  the  time 
of  such  child's  arrival  in  England)  the  expense  of  which  is  to  be  paid 
for  by  a  like  annuity  of  1001.  to  commence  from  the  arrival  of  the 
child  in  England."  JLdrienne  was  delivered  of  a  daughter,  who  com- 
menced the  present  suit  for  the  annuity,  but  which  demand  was  re- 
sisted on  the  ground  of  her  not  having  been  born  when  the  bequest 
was  made  ;  yet  Lord  Eldon  determined  in  her  favour,  upon  the  prin- 
ciple, that  it  was  possible  to  hold,  consistently  with  the  doctrine  of 
Lord  Coke,  that  if  an  illegitimate  child,  enventre  sa  mere,  be  describ- 
ed in  such  a  manner  as  to  ascertain  the  object,  it  might  take  under 
the  description  :  and  his  Lordship  said,  that  the  words  "  the  child 
with  which  Jldrienne  is  now  pregnant,"  were  description  sufficient 
for  the  purpose. 

Such  were  the  words  upon  which  alone  his  Lordship  founded  his 
judgment ;  but  he  gave  a  very  strong  opinion,  that  the  first  expres- 
sions would  have  been  sufficient  to  entitle  the  after-born  daughter. 
The  words  were  these ;  "  As  I  have  reason  to  believe  that  Jldrienne 
is  pregnant  by  me,"  &c.  Lord  Eldon  marked  the  distinction  be- 
tween the  assertion  of  the  fact  of  pregnancy  by  the  testator ;  and 
the  declaration  of  his  belief  that  the  woman  was  enceinte  by  him ; 
and  his  acting  upon  such  belief,  whether  right  or  wrong.  In  the 
first  case,  as  the  law  would  not  admit  proof  of  that  fact,  as  before 
observed,  the  child  could  not  take ;  but  in  the  second,  since  the 
testator  chose  to  assume  the  fact,  and  to  act  upon  the  foundation 
of  his  belief,  there  is  no  uncertainty  in  the  object,  since,  whether  it 
was  or  was  not  the  child  of  the  testator,  he  meant  to  provide  for  it 
as  the  child  of  the  mother  described.  His  Lordship  thus  expressed 
himself:  "  If  the  words  had  been  these,  whereas  A.  is  now  pregnant 
by  me,  that  would  imply  a  positive  assertion  of  a  fact,  the  truth  of 
which,  it  cannot,  on  the  grounds  of  public  policy,  be  suffered  to 
sustain  by  evidence.  But  a  man  may  most  conscientiously  make  use 
of  the  terms  adopted  by  this  testator  to  denote  his  belief  of  a  fact, 
and  his  intention  to  proceed,  not  upon  the  fact  itself,  but  upon  such 
his  belief  of  it.  No  doubt,  where  a  man  assigns  certain  positive 
reasons  for  giving  a  legacy,  if  those  reasons  fail,  the  legacy  may  be 
taken  away.  But  here  the  testator  has  expressed  the  grounds  upon 
which  he  acts  to  be  these  :  I  believe  that  I  am  the  father  of  the  child, 
with  which  this  woman  is  now  enceinte.  I  may  be  mistaken ;  but  I 
had  rather  run  the  risk  of  providing  for  a  child  that  is  not  my  own, 
than  of  incurring  the  guilt  of  leaving  a  child  of  mine  without  a  pro- 
vision." (r) 

(y)  1  Meriv.  141,  and  see  Blunddlv.  Dunn,  cited  1  Mad.  442,  and  stated  infra 
p.  83.  (r)  1  Meriv.  148-152. 


78  Description  of  Legatees.  [Cu.  II. 

In  the  late  case  of  Evans  v.  Massey,(s]  a  testator  by  will,  dated 
the  14th  of  August  1810,  after  the  words  "  having  two  natural  chil- 
dren, and  the  mother  supposed  to  be  carrying  a  third"  gave  all  his 
property  in  England  to  be  equally  divided  between  them,  "  that  is 
to  say,  if  another  child  should  be  born  by  the  mother  of  the  other 
two  in  the  proper  time,  that  such  child  to  have  one-third  of  such 
property  in  England."  In  another  part  of  the  will  the  testator  adds, 
"  I  bequeath  the  whole  of  my  remaining  property,  after  paying  my 
natural  children  as  aforesaid,  to  my  two  nephews"  (naming  them) 
&c.  The  testator  died  on  the  16th,  and  the  child,  of  which  the 
mother  was  enceinte  at  the  date  of  the  will,  was  born  in  about  seven 
months  after.  The  question  was,  whether  the  after-born  child,  who 
died  shortly  after  its  birth,  took  the  interest  intended  under  the  will. 
Chief  Baron  Richards,  after  adverting  to  the  cases  of  Earle  \.  Wil- 
son and  Gordon  v.  Gordon,  decided  that  it  did,  upon  the  principle 
adopted  in  those  cases,  that  the  object  of  the  bequest  was  described 
with  sufficient  certainty.  In  the  course  of  his  judgment  the  Chief 
Baron  observed,  that  there  was  nothing  in  the  terms  of  the  above 
bequest,  to  show  that  the  testator  meant  the  child,  en  venire  sa  mere, 
to  take  only  in  case  of  its  being  his.  Had  there  been  such  a  condi- 
tion annexed  to  the  bequest,  we  have  seen  that  the  bequest  would 
have  failed,  as  evidence  aliunde,  in  proof  of  that  fact,  would  not 
have  been  admissible. 

The  following  propositions  appear  to  be  the  result  of  the  cases 
which  have  been  cited  : 

FIRST, — That  natural  children,  unborn  at  the  date  of  the  will,  and 
described  as  children  of  the  testator  or  another  man,  to  be  born  of  a 
particular  woman,  cannot  take  under  such  a  description. 

SECONDLY, — That  a  legacy  to  an  illegitimate  child  en  ventre  sa 
mere,  described  as  the  child  of  the  testator  or  of  another  man,  will 
also  fail,  since,  whether  in  truth  the  testator,  or  such  person  were  or 
were  not  the  real  father,  is  a  fact  which  can  only  be  ascertained  by 
evidence,  that  public  policy  forbids  to  be  admitted ;  consequently, 
such  child  is  unable  to  make  out  its  title  as  child  to  the  testator  or  to 
the  person  described.  But, 

THIRDLY, — If  the  child  en  ventre  sa  mere  be  merely  described  as  a 
child,  with  which  its  mother  is  enceinte,  without  mentioning  its  puta- 
tive father ;  or,  if  the  testator  express  his  belief  that  the  child  is  his 
own,  and  provide  for  it  under  that  impression,  regardless  of  the  chance 
of  being  mistaken  ;  then  the  child  will,  in  the  first  case,  be  capable 
of  taking;  and  in  the  second,  it  will,  as  presumed,  be  also  entitled, 
in  consequence  of  the  testator's  intent  to  provide  for  it,  whether  he 
be  the  father  or  not. 

The  next  subject  which  regularly  follows  is — 
3.  The  capacity  of  illegitimate  children  to  take  under  the  de- 
scription of  "  children,"  when  they  are  in  existence  at  the  date  of  the 
will. 

It  is  settled,  that  natural  children  having  acquired  by  reputation, 
the  name  and  character  of  children  of  a  particular  person  prior  to 
the  date  of  his  will,  are  capable  of  taking  under  the  description 
of  children,  (t)  But  the  term  child,  son,  issue,  and  every  word  of  that 

(»)  8  Price's  Ex.  R.  22.  (0  1  P.  Will  529.  1  Ves.  8c  Bea.  467. 


SECT.  II.]  Description  of  Legatees'.  79 

species,  is  to  be  considered  as  prima  facie  to  mean  legitimate  child, 
son,  or  issue  ;(w)  so  that  if  a  testator  merely  bequeath  to  his  own  chil- 
dren, or  to  the  children  of  another  person,  or  to  one  or  more  of  them, 
and  nothing  appears  from  the  will  sufficient  to  show  that  he  intended 
natural  children  then  in  existence,  that  class  of  children  will  be  ex- 
cluded.(a;)  It  seems,  indeed,  necessary  to  enable  illegitimate  chil- 
dren to  take  as  children,  that  they  should  be  persona  designate, 
either  by  express  gift  nominatim,  .or  by  manifest  and  incontroverti- 
ble intention  apparent  upon  the  face  of  the  will,  that  they  were 
meant  to  be  included  in  the  term  "  children."  That  intention,  how- 
ever, can  only  be  shown  from  the  will,  for  evidence  cannot  be  re- 
ceived to  prove  that  they  were  intended  by  the  testator  to  be  includ- 
ed in  that  description. (y)  The  only  testimony  admissible  in  those 
cases  is,  that  the  children  had  acquired  the  name  and  character  of 
children  by  reputation  5(2)  and  when  that  charaoter  is  so  established, 
it  remains  for  the  will  to  show  whether  they  were  designated  to  take 
under  the  description  of  children,  the  prima  fade  intention  and  legal 
construction  being  to  their  disadvantage,  as  before  noticed.  And, 

FIRST, — We  shall  consider  some  of  the  instances  in  which  the 
will  was  deemed  to  afford  insufficient  evidence  of  the  testator's  in- 
tention to  include  natural  children  in  the  term  "  children." 

Cartwright  v.  bawdry, (a)  a  case  before  Lord  Rosslyn,  was  parti- 
cular in  this  respect,  that  the  testator  had  an  illegitimate  daughter 
Mary,  by  his  wife  before  their  marriage;  and  they  had  three  illegiti- 
mate daughters  afterwards,  all  of  whom  survived  him.  His  Lordship  is 
reported  to  have  said,  "  It  was  impossible  to  hold  in  a  court  of  justice, 
that  an  illegitimate  child  could  take  equally  with  lawful  children  upon 
a  devise  to  children  :"  a  declaration  unquestionably  correct  in  the 
absence  of  manifest  intention  in  the  will  to  include  such  child,  as 
was  the  case  before  him.  But  where  clear  unequivocal  intention 
appears  in  the  context  of  a  will,  that  natural  children  are  meant  to 
be  included  in  the  term  children ;  then,  although  legitimate  children 
will  not  be  excluded  without  a  special  intent,  because  they  answer 
the  description,  and  are  entitled  by  law  to  take  under  it,  such  their 
privilege  will  not  prevent  the  illegitimate  children  from  partici- 
pating with  them,  since  their  claims  are  founded  upon  the  clear  in- 
tention of  their  common  parent,  to  place  them  in  the  same  condition 
as  lawful  children. (b) 

In  Cartwright  v.  Vawdry,  just  referred  to,  the  testator  having  a 
natural  daughter  and  three  legitimate  daughters  when  he  made  his 
will,  devised  his  real  and  personal  estates  to  his  executors  in  trust, 
to  apply  a  reasonable  part  of  the  produce  in  the  maintenance  and 
education  of  all  such  children  as  he  might  have  at  his  death,  in  equal 
shares,  until  they  attained  twenty-one  or  married,  and  then  to  pay 
to  such  of  them  attaining  that  age  or  marrying,  one-fourth  of  the 
whole  income.  The  testator  in  different  parts  of  his  will  used  the 
words,  she,  her,  and  daughters,  which,  when  coupled  with  the  divi- 
sion of  the  property  into  fourths,  appeared  to  raise  a  presumption 
that  he  had  in  view  not  only  his  three  legitimate  daughters,  but  also 
his  natural  daughter  Mary,  a  circumstance  that  seems  to  have 

(«)  Ibid.  462.  (x)  Ibid.  465.  (u)  1  Ves.  &  Bea.  462,  463.  470. 

(z)  Ibid.  466.  (a)  5  Ves.  530.  (b)  1  Ves.  &  Bea,  454. 


80  Description  of  Legatees.  [Cn.  II. 

escaped  Lord  Eldon's  observation  in  his  comments  upon  this  case, 
and  after  mentioned.  Mary  claimed  one-fourth  of  the  property,  and 
proved  that  the  testator  always  treated  her  as  a  legitimate  daughter, 
and  intended  to  provide  for  her  equally  with  his  other  children  :  (a 
species  of  evidence  which  was  before  noticed  to  foe  inadmissible  to 
explain  a  will.)  But  Lord  Rosslyri's  opinion  was  against  her  claim. 

Lord  Eldon,  in  commenting  upon  this  case,(c)  considered  the  de- 
termination as  solely  founded  upon  the  effect  of  the  will,  and  ap- 
proved of  the  decision,  on  the  principle,  that  the  will  did  not  suffi- 
ciently indicate  the  testator's  intention  to  include  Mary,  his  natural 
daughter,  in  the  term  "  children."  His  Lordship  observed,  that  the 
direction  to  apply  the  income  in  fourths  only  afforded  a  conjecture 
of  such  intention,  since,  if  between  the  date  of  the  will  and  the  tes- 
tator's death,  one  or  two  of  the  four  children  had  died,  the  division 
by  fourths  would  have  been  just  as  inapplicable  as  that  in  thirds,  ex- 
cluding Mary.  Besides  the  terms  of  bequest  would  not  only  have 
included  the  three  legitimate  daughters,  but  all  others  who  might 
have  been  born  between  its  date  and  the  testator's  death ;  it  was 
clear  therefore  that  he  could  not  necessarily  mean  the  natural  daugh- 
ter in  the  general  description,  it  being  impossible  to  say  that  he 
meant  the  three  legitimate  children,  the  will  providing  for  children 
living  at  his  death,  although  not  in  existence  at  the  date  of  it.  Under 
those  circumstances  his  Lordship  observed,  that  the  will  could  not 
be  understood  to  describe  two  classes  of  children,  legitimate  and 
illegitimate,  and  that,  in  his  opinion,  the  case  was  rightly  decided. 

The  case  which  followed  was  Godfrey  v.  Davis, (rf)  determined  by 
Lord  Alvanley,  M.  R.  and  is  a  powerful  authority  in  support  of  what 
has  been  noticed,  that  the  intention  to  entitle  a  natural  child  to  take 
under  the  description  of  child,  must  be  collected  entirely  in  the  will, 
and  not  shown  from  extrinsic  evidence. 

In  Godfrey  v.  Davis,  just  mentioned,  the  bequest  was  in  re- 
mainder to  the  "  eldest  child,  male  or  female,  of  William  Harwood." 
At  that  time  Harwood  was  a  single  man,  and  had  illegitimate 
children,  the  eldest  of  whom  claimed  the  legacy  under  the  above 
description.  It  was  proved  on  her  behalf,  that  the  testator  was  very 
intimate  with  Harwood  and  his  family,  and  knew  that  he  had  no 
legitimate  child;  also  that  the  claimant,  and  all  his  other  children, 
were  treated  by  him  as  children.  Yet  the  Master  of  the  Rolls  de- 
cided against  the  claim,  upon  the  ground  that  the  natural  daughter 
was  not  particularly  designated  by  the  testator,  and  manifestly  and 
incontrovertibly  intended  to  take.  His  Honour  determined  the  case 
upon  the  will  alone,  in  which,  as  nothing  appeared  of  any  intention 
in  the  testator  to  describe  a  natural  child  by  the  word  "  child,"  he 
could  not  supply  the  omission  by  parol  evidence. (e) 

The  case  next  in  succession  is  Kenebel  v.  Scrafton,(f)  in  which 
James  Pierson,  being  unmarried,  and  having  a  natural  child  by 
Mary  Simpson,  bequeathed  his  personal  estate  to  her,  and  an  annuity 
out  of  the  rents  of  his  real  estate ;  and  proceeded,  "  in  case  I  shall 
have  any  child  or  children  by  her,  who  shall  be  living  at  my  decease, 
I  order,"  &c.  first,  maintenance  for  them  till  twenty-one ;  and 

(c)  In  Wilkinson  v.  Mam,  I  Ves.  &  Bea.  464.  («0  6  Ves.  43-48. 

(e)  10  Ves.  203.  (/)  2  East,  530.  542. 


SECT.  II.]  Description  of  Legatees.  81 

secondly,  payment  to  them  equally  of  3000J.  when  they  shall  attain 
that  age.  The  testator  afterwards  married  Mary  Simpson;  before 
which  event  the  child  died.  There  were  three  legitimate  children 
of  the  marriage;  and  the  point  immediately  before  the  Court  of 
King's  Bench  was,  whether  the  will  of  a  single  man  was  revoked  by 
his  marriage,  and  the  subsequent  birth  of  children'?  The  opinion  of 
the  Court,  in  consistency  with  former  authorities,  was,  that  as  mar- 
riage alone  will  not  revoke  a  will,  although,  when  connected  with 
the  birth  of  a  child,  it  will  generally  have  that  effect,  yet  those  two 
circumstances  would  not  so  operate  in  the  present  instance,  since 
the  will  contained  a  provision  for  children,  if  there  should  be  any. 

It  is  obvious,  from  the  decision  of  the  Court,  that  it  considered 
natural  children  could  not  in  general  take  with  legitimate  under  the 
word  children,  and  that  the  latter  were  to  have  the  preference. 
Since,  therefore,  the  terms  of  bequest  in  the  will  just  mentioned  did 
not  authorize  a  construction  which  would  let  in  natural  where  there 
were  legitimate  children,  it  was  a  necessary  consequence,  that  as 
the  latter  class  were  provided  for  by  the  will,  the  marriage  of  their 
parents,  and  their  birth  after  the  date  of  the  will,  could  not  be  a  re- 
vocation. The  Judges,  in  their  remarks  upon  this  case  in  Wilkin- 
son v.  Adam,(g)  observed,  it  might  have  been  well  decided  upon 
the  facts,  that  it  did  not  sufficiently  appear  that  the  testator  intended 
to  include  illegitimate  children  in  the  term  "  children;"  (an  inten- 
tion which  we  have  seen  to  be  necessary  to  appear  upon  the  face  of 
a  will,  and  in  the  absence  of  which  natural  children  could  not  take 
under  the  description  of  "  children.")  And  that  such  were  the  sen- 
timents of  the  Court,  appears  from  the  judgment,  for  the  reason  be- 
fore stated.  Lord  Eldon,  in  his  comments  upon  this  case  in  Wilkin- 
son v.  Jldam,(h)  said,  "  We  may  conjecture  that  the  testator  meant 
illegitimate  children,  if  he  did  not  marry  :  yet  notwithstanding  that 
may  be  conjectured,  the  opinion  of  the  Court  was,  as  mine  is,  that 
where  an  unmarried  man,  describing  a  single  woman  as  dearly  be- 
loved by  him,  does  no  more  than  make  a  provision  for  her  and  chil- 
dren, he  must  be  considered  as  intending  legitimate  children  ;  since 
there  is  not  sufficient  upon  the  will  itself  to  show  that  he  meant  ille- 
gitimate ;  and  it  is  my  opinion  that  such  intention  must  appear  by 
necessary  implication  upon  the  will"  The  import  of  the  expres- 
sion, "  necessary  implication,"  his  Lordship  thus  defined :  "  It  does 
not  mean  natural  necessity,  but  so  strong  a  probability  of  intention, 
that  an  intention  contrary  to  it,  which  is  imputed  to  a  testator,  can- 
not be  supposed." 

The  last  case  that  will  be  produced  under  this  head  is  Swaine  v. 
Kennerley,  which  is  an  express  decision  by  Lord  Eldon,  that  where 
there  are  legitimate  and  illegitimate  children  at  the  date  of  the  will, 
the  latter  cannot  take  with  the  former  under  the  mere  description  of 
children,  where  the  witt  itself  does  not  show  that  natural  children 
were  intended  :  and  his  Lordship  declared  that  such  proof  of  inten- 
tion must  be  supplied  by  the  will  only  ;  extrinsic  evidence,  except 
to  prove  the  illegitimate  children  having,  at  the  date  of  that  instru- 
ment, acquired  the  reputation  of  children  of  the  testator,  or  of  the 

far)  1  Ves.  &Bea.  456.  (A)  Ibid.  465. 

VOL.  i.  L 


82  Description  of  Legatees.  [Cn.  II. 

person  named  in  it,  being  inadmissible  ;  and  by  no  means  to  be  re- 
ceived for  the  purpose  of  raising  a  construction  by  circumstances. 

In  Swaine  \.  Kennerley,(i]  the  case  just  referred  to,  the  bequest 
was  of  21007.  to  be  invested  in  land  to  be  settled  to  the  use  "of  all 
and  every  the  child  and  children  of  his  (the  testator's)  late  son  Tho- 
mas," as  tenants  in  common  in  tail.  At  the  date  of  the  will,  the 
children  of  Thomas  were  three  in  number ;  one  legitimate,  and  two 
illegitimate  :  and  it  was  determined  that  the  natural  children  could 
not  take  with  the  lawful  child,  because  the  will  itself  did  not  prove 
that  the  testator  meant  an  illegitimate  child. 

We  shall  now  proceed — 

SECONDLY,  to  consider  instances  in  which  a  will  was  deemed  to 
afford  sufficient  evidence  of  the  testator's  intention  to  include  na- 
tural children  in  the  expression  "  children." 

Two  propositions  have  been  proved  by  the  preceding  authorities  : 
first,  that  the  will  itself  must  show  the  testator's  intention  to  include 
natural  children  in  the  term  "  children,"  either  by  express  designa- 
tion, or  a  necessary  implication,  collected  from  the  instrument  itself: 
and  secondly,  that  evidence  is  inadmissible  to  show  such  intention, 
when  it  is  not  to  be  clearly  discovered  in  the  will. 

It  has  been  decided  by  great  authority,  that  where  a  man  (married 
at  the  date  of  his  will,  and  without  having  had  a  legitimate  child) 
provided  by  his  will  for  his  wife,  who  he  considered  would  survive 
him ;  and  also  made  provision,  to  commence  after  his  wife's  death, 
for  another  woman  with  whom  he  cohabited,  and  by  whom  he  had, 
when  the  will  was  made,  natural  children,  reputed  to  be  his  own, 
and  provided  for  by  him  as  his  children  by  that  woman,  such  chil- 
dren were  capable  of  taking  that  provision ;  upon  the  ground  that 
the  above  circumstances  raised  so  strong  a  probability  of  the  testa- 
tor's intent  to  provide  for  them,  that  it  would  be  absurd  to  suppose 
the  contrary. 

Such  was  the  case  of  Wilkinson  v.  Jldam,(k}  determined  by  Lord 
Eldon,  assisted  by  three  Judges.  The  form  of  bequest  was,  "  to  the 
children  which  I  may  have  by  Ann  Lewis,  and  living  at  my  de- 
cease," &c.  The  testator  had  provided  for  his  wife,  and  for  Jinn 
Lewis  after  his  wife's  death  ;  and  the  only  children  he  ever  had  were 
three  illegitimates  by  Jinn  Lewis,  all  of  whom  were  living  when  the 
wili  was  made,  and  had  at  that  period  acquired  the  character  and 
reputation  of  being  his  natural  children,  as  appeared  from  the  de- 
positions in  the  cause.  Under  those  circumstances,  and  the  inten- 
tion collected  from  the  will,  it  was  decided  that  the  three  illegiti- 
mate children  were  entitled  under  the  terms  of  the  description  in  the 
wilh(J) 

The  last  determination  was  founded  upon  the  will  alone,  and  the 
depositions  establishing  the  reputation  acquired  by  the  illegitimate 
children  of  being  children  of  the  testator.  Certain  memoranda  en- 
tered by  him  in  a  book,  proved  in  the  Ecclesiastical  Court,  as  ex- 
planatory of  the  will,  were  rejected,  (part  of  the  subject  of  disposi- 
tion being  freehold  estate,)  on  the  ground  that  the  contents  of  the 
book  were  not  to  be  considered  as  incorporated  in  the  will.  Upon  the 

(0  1  Ves.  &  Bea.  469.  (£)  Ibid.  422. 

(/)  See  also  Bay  ley  v.  Snelham,  1  Sim.  &  Stuart,  78. 


SECT.  II.]]  Description  of  Legatees.  83 

subject  of  evidence  admissible  in  those  cases,  Lord  Eldon  expressly 
confines  it  to  the  fact  of  the  children  having  obtained  by  reputation 
the  name  and  character  of  the  testator's  children.  His  Lordship 
expressed  himself  to  the  following  effect: "  In  alLthe  cases  I  have  seen 
in  relation  to  this  question,  illegitimate  children,  if  they  were  to 
take,  must  have  done  so,  not  by  any  demonstration  arising  out  of 
the  will  itself,  but  by  the  eifect  of  evidence  dehors  read  or  attempted 
to  be  read  with  a  view  to  establish,  not  out  of  the  contents  of  the 
will,  but  by  something  extrinsic,  who  were  intended  to  be  the  de- 
visees ;  and  if  my  judgment  upon  this  case  is  supposed  to  rest  upon 
any  evidence  out  of  the  will,  except  that  which  establishes  the  fact, 
of  there  being  individuals  who  had  gained  by  reputation  the  name 
and  character  of  the  testator's  children,  the  conclusion  is  drawn 
without  sufficient  attention  to  the  grounds  upon  which  the  judg- 
ment is  formed :  my  opinion  being,  that,  taking  the  fact  as  estab- 
lished, of  there  being  children  who  had  gained  the  reputation  of  being 
his  children,  it  does  necessarily  appear  upon  the  will  itself,  that  he 
intended  those  children. "(m) 

In  a  case  of  Blundell  v.  Dunn,(n)  decided  at  the  Rolls  a  short 
time  before  the  last,  the  testator  vested  stock  in  trustees  upon  the  fol- 
lowing trusts  :  "  to  pay  my  wife  or  reputed  wife  Sarah  4(jl.  a  year  for 
life,  and  to  educate  my  children,  &c."  The  trust  of  his  residuary 
estate  was  declared  :  "  to  divide  the  interest  among  my  children 
that  are  now  living,  and  also  the  child  or  children  that  my  wife  is  now 
enceinte  with,"  at  their  ages  of  twenty-one  ;  and  to  divide  the  prin- 
cipal among  them  at  those  periods.  When  the  will  was  made,  the 
testator  had  two  children  by  Sarah,  to  whom  he  was  not  married ; 
and  she  was  then  enceinte  with  another,  which  was  born  after  the  tes- 
tator's death.  His  Honour  decreed  the  residue  to  be  distributed  into 
three  parts  corresponding  with  the  number  of  children,  declaring 
the  share  of  one  of  them,  who  died,  to  be  vested  in  the  Crown. 

It  is  apparent  from  the  whole  context  of  the  will,  that  the  testator 
intended  to  make  provision  for  persons  then  in  existence,  and  a 
child  en  ventre  sa  mere.  He  describes  the  mother  as  his  reputed 
wife,  and  having  none  but  illegitimate  children,  he  refers  to  them 
as  then  living ;  so  that  the  will  clearly  showed  the  intention  of  the 
testator  to  provide  for  his  two  natural  children  then  in  esse.  And 
with  respect  to  the  child  en  ventre  sa  mere,  it  is  observable  that  the 
testator  does  not  bequeath  to  it  as  his  child  by  Sarah,  but  as  the 
child  of  Sarah,  a  description,  by  which,  as  we  have  seen,  an  illegiti- 
mate child  unborn  is  capable  of  taking. 

In  the  following  case,  Sir  Thoinas  Plumer,  V.  C.  expressed  a 
strong  opinion  that  the  words,  "  to  my  children,"  contained  in  the 
will  of  a  bachelor,  then  having  illegitimate  children,  reputed  to  be 
his  own,  would  include  them ;  the  terms  being  sufficient  to  mark 
them  as  personte  designates.  But  the  case  was  not  solely  determined 
upon  that  point,  as  the  will  in  other  parts  afforded  evidence  in  con- 
junction with  those  words  sufficient  to  show  that  those  natural  chil- 
dren were  meant  to  take  under  them. 

The  case  alluded  to  is  Beachcroft  v.  Beachcrqft.(6)  There  a  sin- 
gle man  resident  in  India,  having  five  natural  children  at  the  time  of 

(m)  1  Ves.  &  Bea.  462.  (n)  Cited  in  1  Mad.  433.  (o)  1  Mad.  430. 


84  Description  of  Legatees.  [Cn.  II. 

making  his  will ;  (three  of  whom  he  had  acknowledged  to  be  his  chil- 
dren, given  his  name  to,  and  sent  to  this  country  to  be  educated,) 
bequeathed  in  this  manner  ;  "  to  my  children  5000/.  sterling  each  ; 
and  to  the  mother  of  my  children  6000  sicca  rupees;"  then  giving 
the  residue  to  his  brothers  and  sisters.  Sir  Thomas  Plwner  declared, 
that  the  illegitimate  children  were  entitled  to  the  legacies,  as  being 
sufficiently  designated  by  the  will.  He  concluded  his  judgment  in 
these  words ;  "  After  examining  this  case  according  to  established 
principles  and  authorities,  I  think  exvisceribus  of  the  will,  the  lega- 
tees whom  this  testator  must  have  intended  to  describe,  were  not  the 
possible  progeny  of  a  future  marriage,  but  existing  persons  children 
already  born,  uniformly  designated  and  recognized  by  him  in  that 
character." 

The  grounds  of  his  Honour's  decree  appear  to  have  been  these  : 
that  the  words  "  my  children"  explained  by  the  subsequent  gift  to 
"  the  mother  of  my  children,"  and  the  portions  of  5000Z.  bequeathed 
to  each  child,  showed  distinctly  that  the  testator  could  only  mean 
children  then  in  existence,  which  he  had  by  the  person  described  as 
their  mother,  and  for  whom  individually  he  intended  first  to  provide 
portions,  after  which  he  designed  the  residue  of  his  property  for  his 
legitimate  relations. 

In  the  last  case  the  intention  of  the  testator  prevailed,  notwith- 
standing the  possibility  of  his  subsequent  marriage,  and  his  having 
legitimate  issue.  It  follows,  therefore,  if  there  be  no  possibility  of 
the  person  described  having  lawful  children,  and  a  legacy  be  given 
to  his  children  generally,  all  those  born  at  the  date  of  the  testament, 
although  illegitimate,  will  be  entitled ;  because  it  is  manifest  that 
they  were  intended,  since  there  never  were  any  lawful  children  to 
which  the  words  of  the  will  could  be  applied.  Suppose  then  a  be- 
quest to  be  made  to  the  children  of  A.  by  a  will  noticing  JTs  death, 
and  evidence  be  given  that  he  never  had  any  lawful  child,  but  left  at 
his  decease  natural  children  ;  those  children  wrould  take  upon  esta- 
blishing by  proof  their  title  by  reputation  as  children  of  A.,  and  that 
he  never  had  any  legitimate  children  to  whom  the  term  children 
could  apply. 

Such  was  the  case  of  Lord  Woodhouselee  v.  Dalrymple,(p)  deter- 
mined by  Sir  William  Grant,  M.  R.  There  Sir  James  Craig  be- 
queathed "  to  the  children  of  the  late  Charles  Kerr  who  should  be 
living  at  his  (the  testator's)  death,  2000Z.  in  equal  shares."  It  ap- 
peared, in  evidence  that  Charles  was  married,  had  five  children  by 
his  wife  before  marriage,  but  no  child  after  that  event :  that  the  five 
were  baptized  as  the  children  of  Charles  and  Mary  Kerr,  and  the 
testator,  acquainted  with  the  circumstances  of  Charles's  family,  well 
knew  the  claimants,  three  of  those  children  who  survived  him,  the 
testator,  and  were  the  persons  intended  in  the  bequest  made  "  to 
the  children  of  the  late  Charles  Kerr,"  and  that  Charles  never  had  a 
legitimate  child.  His  Honour  decided  in  favour  of  the  three  natural 
children,  upon  the  principle  that  the  death  of  Charles  being  noticed 
in  the  will,  and  it  being  proved  that  previously  to  his  decease  he 
never  had  any  but  the  five  illegitimate  children,  who  had  acquired 
the  reputation  of  being  his  children,  it  clearly  appeared  from  the 

(/OSMeriv.  419. 


SECT.  III.]  Description  of  Legatees.  85 

will,  (the  above  collateral  points  being  established)  that  the  testator 
meant  to  designate  the  natural  children  of  Charles  living  when  the 
will  was  made  ;  for  there  never  were  nor  could  be  any  children  of 
Charles  to  whom  the  words  of  the  will  could  be  applied  at  its  mak- 
ing or  afterwards,  except  to  those  five  natural  children. 

SECT.  III.  The  construction  of  the  word  "  HEIRS,"  when 
applied  to  personal  Estate. 

1.  A  legacy  to  A.  and  his  heirs,  is  an  absolute  bequest  to  A.  and 
the  whole  interest  in  the  money  vests  in  him  for  his  own  use.(^)  But 
when  no  property  in  the  bequest  is  given  to  A.  and  the  money  is  be- 
queathed to  his  heirs,  or  to  him,  with  a  limitation  to  his  heirs,  if  he 
die  before  the  testator,  and  the  contingency  happens,  then  if  there 
be  nothing  in  the  will  showing  the  sense  in  which  the  testator  made 
use  of  the  word  heirs,  the  next  of  kin  of  A.  are  entitled  to  claim  under 
the  description,  as  the  only  persons  appointed  by  the  law  to  succeed 
to  personal  property. 

We  accordingly  find  Lord  Alvariley  in  Holloway  v.  Holloway,(r) 
expressing  an  opinion,  (although  it  was  unnecessary  for  him  to  decide 
the  point)  that  the  word  "  heirs,"  when  applied  by  testament  to  per- 
sonal estate,  must  be  understood  to  mean  next  of  kin,  for  the  reason 
before  mentioned. 

So  in  the  case  of  Lowndes  v.  Stone,(s)  the  residuary  bequest 
was  to  the  testator's  next  of  kin  or  "  heir  at  law,"  whom  he  appoint- 
ed executor.  The  Court  determined  that  the  next  of  kin  were  en- 
titled to  it. 

And  in  Vaux  v.  Henderson,(t)  Alexander  Coutts  bequeathed 
200J.  to  Edward  J^aux;  but  if  he  died  before  the  testator,  then'to 
Edward's  "  heirs."  Edward  did  not  survive  the  testator,  but  by 
will  disposed  of  all  his  personal  estate,  appointed  executors  and  left 
a  widow  and  seven  children.  Sir  William  Grant,  M.  R.  determined 
that  the  legacy  belonged  to  the  next  of  kin  of  Edward  who  were 
living  at  the  death  of  the  testator  Alexander  Coutts. 

2.  The  above  authorities  are  sufficient  to  establish  the  proposition, 
that  a  bequest  to  the  heirs  of  an  individual,  without  addition  or  ex- 
planation, will  belong  to  his  next  of  kin.     The  rule  however  is  sub- 
ject to  alteration  by  the  intention  of  testators.     If  then  the  con- 
tents of  the  will  show,  that  by  the  jvord  "  heirs"  the  testator  meant 
other  persons  than  next  of  kin,  those  persons  will  be  entitled.    Chil- 
dren, therefore,  may  take  under  the  word  "  heirs,"  as  in  the  follow- 
ing case  : 

Elizabeth  Letheuillier  bequeathed  in  the  following  manner  :  "  I 
give  to  my  sister  Loveday's  heirs  6000Z.  I  give  to  my  sister  Brady's 
children  1000J.  equally."  Mrs.  Loveday  had  two  daughters  only, 
and  both  were  living  when  the  will  was  made.  One  of  them  died 
before  the  testatrix,  leaving  three  children,  and  the  other  survived 
her  and  claimed  the  whole  6000Z.  The  question  was,  whether  the 
children  of  the  deceased  daughter  should  participate  with  the  sur- 
viving daughter,  which  depended  upon  the  construction  of  the  word 
"  heirs."  And  Sir  Thomas  Clarke,  M.  R.  was  of  opinion  that  the 

(?)  Crawford  v.  Trotter,  4  Mad.  361.  (r)  5  Ves.  403. 

(«)  4  Ves.  649.  (r)  1  Jac.  &  Walk.  388. 


86  Description  of  Legatees.  [Cn.  II. 

testatrix  had  explained  that  word  by  the  term  "  children"  in  the  be- 
quest which  immediately  followed.  So  that  the  word  "  heirs"  was 
to  have  the  same  and  only  meaning  as  "children,"  a  construction 
that  entitled  the  surviving  daughter  to  the  whole  GOOOZ.(tt) 

The  intention  of  testators  to  use  the  term  "  heirs"  in  the  sense  of 
"  children"  equally  appears  in  instances  where  the  direction  as  to  the 
distribution  of  the  property  is  inconsistent  with  construing  that  word 
in  its  usual  acceptation,  viz.  as  a  word  of  limitation. 

Suppose  then  A.  to  give  a  legacy  to  B.  for  life,  and  then  "  to  the 
heirs,  or  the  heirs  of  the  body  of  B.  to  be  divided  among  them  as 
B,  shall  appoint  by  deed  or  will ;"  this  delegated  authority  of  dis- 
tribution shows  that  the  word  "  heirs"  was  substituted  for  children  ; 
for  it  was  the  obvious  intention  that  the  legatees  were  to  take  dis- 
tributively  and  as  purchasers,  not  in  succession  as  heirs,  but  toge- 
ther as  children.  A  contrary  construction  of  the  words  would  defeat 
that  intention  ;  for  if  the  expression  "  heirs"  was  considered  a  word 
of  limitation,  IPs  life-estate  must  necessarily  be  enlarged  ;  it  would 
give  him  the  absolute  interest  in  the  fund,  to  the  disappointment  of 
his  children,  and  in  contradiction  to  the  power  of  appointment, 
which  would  be  rejected,  and  struck  out  of  the  will. (a?) 

The  construction  will  be  the  same  if  a  bequest  be  made  to  a  per- 
son for  life,  and  afterwards  "to  the  heirs  or  heirs  male  of  his  body 
as  tenants  in  common"  In  such  a  case,  "  heirs"  must  be  considered 
synonimous  with  "  children  ;"  because  it  appears  to  be  the  intention 
of  the  testator  to  give  the  legatees  interests  distinct  and  independent 
of  that  bequeathed  to  their  parents,  and  in  a  class,  and  not  succes- 
sively, as  is  the  manner  in  which  heirs  take.  Besides,  were  the 
word  "  heirs"  interpreted  in  its  natural  sense,  it  would  defeat  the 
testator's  intention  by  vesting  the  absolute  interest  in  the  person 
whom  he  only  intended  to  take  the  property  for  Yife.(y) 

So  also,  if  the  bequest  were  to  A.  for  life,  -and  to  the  "  heirs  or 
heirs  male  of  his  body,  their  executors,  administrators,  and  assigns;" 
the  inconsistency  between  the  natural  import  of  the  word  "  heirs," 
and  the  expressions  grafted  upon  them,  so  clearly  shows  the  testa- 
tor's meaning  by  that  term  to  be  children,  (individuals  to  take  per 
capita  in  their  own  rights,  and  not  as  heirs  successively  and  by  de- 
scent) that  the  word  "  heirs"  wi]lftbe  considered  the  same  as  if  the 
testator  had  used  the  word  children. (z) 

It  is  to  be  remarked,  that  in  the  three  last  instances  the  bequests 
to  "  heirs"  were  preceded  by  interests  for  lives  expressly  given  to 
the  parents ;  yet  the  construction  of  "  heirs"  to  mean  children  will 
equally  prevail,  although  that  term  be  not  preceded  by  an  express 
limitation  to  the  parent  for  life,  if  sufficient  appear  from  the  will  to 
show  that  the  word  "  heirs"  was  used  in  the  sense  of  children.  And 
such  is  the  effect  of  the  term  "  heirs,"  where  it  appears  to  have  been 
used  in  that  sense,  whether  it  be  so  explained  by  the  testator  in 
words,  or  the  intention  be  inferentially  collected  from  the  context, 
that  the  word  ex  vi  termini  will  give  by  implication  an  estate  for 

(u)  Loveday  v.  Hopkins,  Ambl.  273. 

(.r)  Target  v.  Gaunt,  1  P.  Will.  432.  and  see  5  Maule  &  Sehv.  100. 

(z/}  Jacobs  v.  Amyatt,  4  Bro.  C.  C.  542.  Doe  v.   Wright,  5  Maule  &  Selw.  95. 

(z]  Donne  v.  Merrefield,  cited  Forrest,  56.  Hodgeson  v.  Bussey,  2  Atk.  89. 


SECT.  III.]  Description  of  Legatees.  87 

life  to  the  parent,  with  remainder  to  the  children ;  though,  accord- 
ing to  the  case  of  Bvffar  v.  Bradford,  before  stated, (a)  under  a  be- 
quest to  A.  and  her  children,  the  parent  and  children  would  take  as 
joint-tenants,  if  A.  had  any  children  living  either  at  the  date  of  the 
will,  or  at  the  death  of  the  testator ;  the  law  marking  a  distinction 
between  the  use  of  the  terms  "  heirs"  and  "  children." 

The  following  are  authorities  in  support  of  the  above  observations : 

In  Law  v.  Davis,(b)  A.  bequeathed  property  "to  B.  and  his  heirs 
male,  equally  to  be  divided  between  them,  share  and  share  alike." 
B.  had  four  children;  and  although  the  limitation  was  not  to  him 
for  life,  yet  the  Court  thought  the  true  construction  was  to  give  B. 
the  interest  only,  and  the  principal  among  the  heirs  male  equally, 
i.  e.  to  his  children  being  sons,  who  alone  answered  the  description. 

The  case  of  Wilson  v.  Vansittart,(c]  seems  to  class  under  this 
head,  although  there  were  collateral  circumstances  confirmatory  of 
the  intention. that  children  should  not  take  in  prcesenti  with  their 
parent,  which  did  not  occur  in  the  last  authority. 

In  that  case,  James  Wilson  bequeathed  "  to  his  brother  John,  and 
to  his  heirs  male,  equally  to  be  divided  among  them,"  his  residuary 
personal  estate  ;  excepting  out  of  it  100Z.  for  his  nephew  John  (who 
was  the  son  of  his  brother  John ;)  and  another  100?.  for  his  nephew 
William  Stephenson;  and  800/.  to  be  divided  among  the  other 
grand-children  of  his  father's  first  marriage.  Lords  Commissioners 
Smyth  and  Bathurst  were  clearly  of  opinion,  that  according  to  the 
construction  of  the  will,  the  testator's  brother  John  took  the  whole 
for  life,  with  remainder  to  his  sons  equally. 

The  division  of  the  fund  equally  among  heirs  male,  clearly  show- 
ed, for  the  reasons  before  detailed,  that  the  testator  used  the  words 
"  heirs  male"  in  the  sense  of  male  children,  the  construction  being 
""so  settled;  the  case  of  Law  v.  Davis  is  an  authority  for  their  taking 
in  remainder,  aftec  the  death  of  their  father,  to  whom  a  life-interest 
in  the  fund  was  impliedly  given  ;  an  interpretation  confirmed  by  the 
circumstance  of  the  legacy  taken  out  of  the  residue  for  the  son  of 
John,  since  that  immediate  gift  to  a  child  of  John  is  inconsistent 
with  an  intention  in  the  testator  for  the  other  male  children  of  John 
to  take  with  him  the  residue  in  prcesenti  but  quite  reconcileable 
with  the  construction,  that  John  was  meant  to  enjoy  the  residue  for 
life,  and  the  male  children  the  capital  after  his  decease. 

The  last  case  which  will  be  produced  .upon  the  present  subject, 
is  a  decision  on  the  simple  question  of  a  legacy  to  A.  and  to  her 
heirs ;  the  testator  declaring  that  by  the  word  "  heirs,"  he  meant 
children,  and  which  fully  establishes  the  distinction  before  noticed, 
when  the  word  "  children,"  or  the  word  "  heirs,"  explained  to  mean 
children,  is  the  term  used  in  the  bequest. 

The  case  alluded  to  is,  Crawford  v.  Trotter,(d]  in  which  the  form 
of  a  bequest  was  to  this  effect :  "  To  Lady  Scott  and  to  her  heirs, 
(say  children)  I  give  1000Z.  three  per  cent,  reduced  annuities.  At 
the  date  of  the  will,  Lady  Scott  had  children  living  ;  and  Sir  John 
Leach,  V.  C.  was  of  opinion,  that  her  ladyship  was  entitled  for  life, 
with  remainder  to  her  children,  and  for  the  following  reason :  the 

(a)  Ante,  fi.  70.  (*)  Cited  1  Ves.  jun.  145.  from  Reg,  Lib. 

(c)  Ambl.  562.  (rf)  4  M^d.  361. 


88  Description  of  Legatees.  [Cn.  II. 

word  "  heirs,"  which  was  used  as  synonimous  with  children,  imparted 
that  the  latter  were  to  take  after  death. 

3.  It  being  always  a  question  of  intention  as  to  the  meaning  of  a 
testator  in  the  use  of  the  word  "  heirs ;"  if  it  appear  that  the  intent 
was  for  the  heir,  properly  and  technically  such,  to  take  the  person- 
al estate,  there  can  be  no  objection  to  his  title.  An  instance  of  that 
intention  may  occur  when  a  testator  blends  his  real  and  personal 
estates  together ;  and,  after  giving  the  fund  to  a  person  for  life,  di- 
rects that  his  next  heir  at  law  shall  afterwards  succeed  to  it.  In 
this  case,  the  intention  that  both  estates  should  be  enjoyed  together, 
is  apparent ;  and  to  divide  them  by  giving  the  one  to  the  next  of  kin 
would  be  contrary  to  the  words  ;  consequently,  a  court  of  equity 
has  no  alternative  but  to  adhere  to  the  description  in  the  will,  and 
to  permit  the  person  answering  that  description,  viz.  the  heir  at  law 
to  enjoy  the  whole. 

Accordingly  in  Gwynne  v.  Muddock,(e)  Mr.  Morgan  bequeathed 
to  his  daughter,  Ann  Williams,  all  his  real  and  personal  estates,  to 
enjoy  during  her  life,  and  to  be  enjoyed  after  her  death,  by  hiy 
"  next  heir."  Sir  William  Grant  determined  in  favour  of  the  testa- 
tor's co-heirs,  for  the  reasons  before  stated. 

The  subject  which  next  regularly  presents  itself  for  considera- 
tion is : 

SECT.  IV.  The  persons  entitled  under  Bequests  made  to 

"ISSUE." 

1.  The  term  "Issue"  is  of  very  extensive  import,  and  when  used 
as  a  word  of  purchase,  and  unconfined  by  any  indication  of  intention, 
will  comprise  all  persons  who  can  claim  as  descendants  from  or 
through  the  person  to  whose  issue  the  bequest  is  made ;  and  in  or- 
der to  restrain  the  legal  sense  of  the  term,  a  clear  intention  must . 
appear  upon  the  will. 

In  Davenport  v.  Hanbury,(f)  the  bequest  was  "  to  Mary  Daven- 
port or  her  issue."  Mary  died  before  the  testator,  leaving  a  son 
and  two  grand-children,  the  descendants  from  a  deceased  daughter. 
Lord  Alvanhy  decided  that  the  grand-children  were  entitled  with 
the  son,  observing,  there  was  no  doubt  that  the  word  "  issue"  had 
ever  been  considered  as  embracing  other  objects  than  children.  He 
also  determined,  that  they  took  in  joint-tenancy. 

And  in  Freeman  v.  Parsley, (g]  Lord  Rosslyn  made  a  similar  de- 
cree. There  the  testator  devised  a  moiety  of  his  real  and  personal 
estates,  in  trust  for  his  half-sister  Elizabeth  Rogers,  and  in  case  of 
her  death,  to  be  divided  among  her  lawful  issue.  The  other  moiety 
he  gave  in  trust  for  his  five  cousins  equally,  naming  them,  and  in 
case  of  any  of  their  deaths,  in  trust  as  to  their  shares  for  their  lawful 
issue  equally,  and  in  default  of  such  issue,  for  the  survivors  in  equal 
shares.  Elizabeth  and  two  of  the  cousins  died  before  the  testator, 
leaving  children  and  grand-children.  Some  of  the  parents  of  the 
grand-children  were  living  and  others  dead ;  of  the  latter,  part  died 
before,  and  the  remainder  after,  the  death  of  the  testator ;  but  all 
the  grand-children  were  born  during  his  life.  They  therefore  being 

(0  14  Ves.  488.  (/)  3  Ves.  257. 

(SO  3  Ves,  421,  and  see  Leigh  v.  Worbury,  13  Yes.  340.  344.  S.  P. 


SECT.  IV.]  Description  of  Legatees.  89 

in  existence  when  the  funds  were  distributable,  claimed  under  the 
description  of  issue  of  the  original  legatees,  in  the  following  manner  : 
grand-children,  whose  parents  died  during  the  life  of  the  testator, 
claimed  the  proportions  their  respective  grandmothers  would  have 
been  entitled  to,  if  they  had  survived  him.  Those  grand-children, 
whose  parents  out-lived  the  testators,  (some  of  whom  were  living 
and  others  dead,)  and  consequently  took  vested  interests,  claim- 
ed equal  shares  with  their  parents  in  the  proportions  of  the  trust 
funds  which  their  grandmothers  would  have  been  entitled  to, 
had  they  been  in  existence.  And  Lord  Rosslyn  was  of  opinion,  that 
the  claims  of  the  grand-children  were  well  founded,  and  decreed 
accordingly. 

So  also  in  Bernard  v.  Montague,(h}  portions  were  provided  by 
will  for  the  testator's  daughters,  to  be  vested  at  a  future  and  uncer- 
tain period  ;  with  a  proviso,  that  if  any  of  them  previously  died,  leav- 
ing issue,  such  issue  were  to  take  their  parents  shares.  All  the 
daughters  died  during  the  life  of  the  testator,  except  one  named 
Margaret,  who  was  married,  and  when  she  died,  which  was  shortly 
after  the  testator,  it  was  doubtful  whether  the  event  had  happened, 
upon  which  her  portion  was  to  vest ;  so  that  an  inquiry  was  direct- 
ed. She  left  three  children,  two  of  whom  died  in  infancy,  and  the 
third,  called  Rebecca,  died,  leaving  four  children,  grand-children  of 
Margaret.  And  with  respect  to  their  interests,  supposing  the  re- 
sult of  the  inquiry  to  be,  that  the  portion  did  not  vest  in  Margaret, 
Sir  William  Grant  said,  "  I  am  of  opinion,  that  there  is  nothing 
in  the  clause,  directing  the  portion  to  go  over  in  that  event,  which 
should  confine  its  operation ;  but  that  the  grand-children,  as  well 
as  the  children,  will  be  entitled  under  the  general  description  of 
"  issue." 

2.  The  preceding  cases  show  the  sense  in  which  the  word  "issue" 
is  to  be  understood,  when  unexplained.     And  it  may  be  proper  to 
observe,  that  when  it  appears  clearly  to  be  a  testator's  meaning  to 
provide  for  a  class  of  individuals  living  at  the  date  of  his  will,  and 
he  provides  against  a  lapse  by  the  death  of  any  of  them  in  his  life- 
time, by  substitution  of  their  issue;  in  such  a  case,  although  that 
word  will   include  all  the  descendants  of  the  designated  legatees, 
yet  if  any  person,  who  would  have  answered  the  description  of  an 
original  legatee,  when  the  will  was  made,  be  then  dead,  leaving 
issue,  that  issue  will  be  excluded,  because  the  issue  of  those  indivi- 
duals only  who  were  capable  "dt  taking  original  shares  at  the  date 
of  the  will,  were  intended  to  take  by  substitution;  so  that  as  the  per- 
son who  was  dead  when  the  will  was  made,  could  never  have  taken 
an  original  share,  there  is  nothing  for  his  issue  to  claim  in  his  place. 
To  exemplify  this  : 

Suppose  A.  to-.-bequeath  a  legacy  to  the  children  of  B.  which  he 
now  has  by  C.  his  wife,  but  if  any  of  them  die  before  A.  their  shares 
shall  go  to  their  lawful  issue.  Should  a  child  of  B.  happen  to  be 
dead  when  the  will  was  made,  leaving  issue,  that  issue  can  take 
nothing  for  the  reason  before  mentioned. (i) 

3.  Although  "  issue,"  when  abstractedly  considered,  is  of  so  exten- 

I  1  Meriv.  424-434. 

See  Christofiherson  v.  Miylor,  1  Meriv.  320.  stated  ante,  p.  46. 
VOL.  I.  M 


90  Description  of  Legatees.  [Cn.  II. 

sive  an  import,  as  to  include  all  the  descendants  of  the  object  de- 
scribed, yet  when  it  can  be  collected  from  the  will,  that  a  testator 
in  using  the  word,  did  not  intend  it  should  be  understood  in  its  com- 
mon acceptation,  the  import  of  it  will  be  confined  to  the  persons 
whom  it  was  intended  to  comprehend.  Or,  in  the  words  of  Lord 
Eldon,  "  if  upon  fair  reasoning,  deduced  from  the  words  of  the  will, 
all  the  contents  and  the  design  and  tenor  of  it,  as  manifested  by  its 
contents,  show  the  word  "  issue"  to  be  meant  in  a  more  restrained 
sense,  that  sense  may  be  given  to  it. "(A;)  From  these  remarks,  it 
appears  not  only  that  the  intent  to  restrain  the  legal  import  of  the 
term  "  issue"  must  be  clear,  but  also  that  evidence  of  such  inten- 
tion, independent  of  the  will,  is  inadmissible.  With  respect  to  au- 
thorities, in  support  of  the  above  observations  : 

In  Horsepool  v.  Watson,(l)  lands  were  devised  to  James  Horsepool 
and  his  wife  Mary  for  life,  remainder,  after  the  death  of  the  sur- 
vivor, to  trustees,  to  sell,  and  apply  the  produce  among  all  the  issue, 
child  or  children,  male  or  female,  of  James  by  his  wife  Mary,  and 
their  representatives,  equally.  At  the  death  of  the  survivor  of  James 
and  Mary,  there  were  several  children,  one  of  whom,  a  daughter, 
having  survived  the  testatrix,  died  during  the  life  of  the  survivor  of 
her  parents,  having  first  married,  and  left  children.  There  were 
also  other  grand-children  of  James  and  Mary;  and  the  question  was 
between  the  surviving  children,  the  grand-children,  and  the  husband 
of  the  deceased  child,  who  claimed  as  her  administrator.  The 
Chancellor  determined  two  points:  first,  that  the  testatrix  had  re- 
strained the  general  import  of  the  word  "  issue"  by  the  terms  "  child 
or  children"  immediately 'following,  so  that  grand-children,  whose 
parents  were  living,  could  not  take  with  their  parents  under  the  ori- 
ginal bequest.  And  secondly,  that  the  grand-children  whose  mother 
died  before  the  survivor  of  James  and  Mary  Horsepool,  were  entitled 
in  preference  to  their  father,  claiming  as  the  mother's  administrator ; 
because  the  testatrix  had  shown  her  sense  of  the  word  "  represen- 
tatives" by  the  term  "  issue,"  viz.  representatives,  being  issue. 

In  the  following  case  ofSibley  v.  Perry, (m)  Lord  Eldon  consider- 
ed the  contents  of  the  will  as  affording  that  species  of  evidence  of 
the  testator's  meaning,  which  was  sufficient  to  restrain  the  word 
"issue"  to  the  sense  of  children. 

That  case  consisted  of  a  variety  of  legacies ;  the  first  of  which 
was  a  bequest  of  1000Z.  in  the  three  per  cent,  consols  to  each  of  the 
testator's  relations,  John,  Robert  aim  Mary  Dixon,  if  living  at  his 
death ;  but  in  the  event  of  all  or  any  of  them  previously  dying,  he 
willed  "  that  the  lawful  issue  of  every  one  of  them  so  dying  should 
equally  have  and  enjoy  the  1000Z.  stock,  which  their  respective 
parents,  if  living,  would  have  had."  And  Lord  Eldon  said,  that  as 
the  word  "  parents"  must  be  understood  father  or  mother,  which 
more  clearly  appeared  from  the  next  legacy,  the  correlative  term 
"  issue"  must  be  taken  in  the  sense  of  children. 

The  second  bequest  just  referred  to,  was  of  a  like  sum  of  money 
given  to  John  Dixon,  "  if  living  at  the  testator's  death,  and  to  his 
lawful  issue  equally,  if  he  the  parent  should  then  be  dead."  His 

(A-)  7Ves.  53L  (/)  3  Ves.  383.  (m)  7  Ves,  522. 


SECT.  IV.]  Description  of  Legatees.  91 

Lordship  observed,  it  was  certain  that  the  testator  did  not  mean 
grandfather  by  the  word  "  parent."  By  referring  to  John  Dixon  as 
parent,  he  showed  his  sense  of  the  expression  to  be  the  father,  and 
that  he  intended  by  the  term  "  issue"  the  children  of  John. 

And  thirdly,  the  testator  proceeded  to  give  three  legacies  to  the 
"  issue"  of  persons  whom  he  supposed  to  be  dead.  The  first  was 
bequeathed  "  to  each  lawful  issue  who  might  be  alive  at  his  death 
of  his  father's  sisters,  whose  names  were  Martha,  Mary  and  Rebecca, 
to  each  of  them  living,  and  lawful  issue  1401.  stock."  The  second 
was  "  to  each  of  the  lawful  issue,  and  also  to  the  widow  of  the  late 
Thomas  Denson,  130Z.  stock,  if  living  at  my  decease."  And  the 
third  was  given  in  similar  terms  to  the  issue  of  the  late  Robert  Den- 
son.  Next  followed  legacies  to  parents  and  their  children,  to  a 
widow  and  her  daughter,  to  a  son  whose  parents  were  dead ;  and  to 
the  daughters  of  the  defendant  Sibley.  Lord  Eldon  considered  the 
three  legacies  given  to  "  issue"  as  well  as  the  preceding  to  be  in- 
tended for  children  only;  because  the  clauses  in  the  will  by  which 
the  prior  bequests  were  made,  showed  that  the  testator  meant  the 
word  "  issue"  in  the  sense  of  children  alone.  Added  to  which,  the 
whole  tenor  and  design  of  the  instrument  confirmed  that  intention, 
for  the  testator  appeared  from  it  to  have  designed  to  give  to  children 
generally  under  different  descriptions:  1st,  by  the  word  "issue;" 
and  2dly,  by  the  words  "children"  and  "daughters;"  by  which  the 
general  term  "  issue"  was  explained  and  restricted,  as  in  the  before 
stated  case  of  Horsepool  v.  Watson.  His  Lordship  finally  declared, 
that  upon  the  true  construction  of  the  will,  and  the  whole  of  it  taken  to- 
gether, the  testator,  by  the  words  "  lawful  issue,"  meant  "  children  ;" 
according  to  which  the  distribution  ought  to  be  made. 

The  distinctions  noticed  in  the  las);  section  upon  the  subject  of 
the  word  "  heirs, ">  being  construed  to  mean  children,  equally  ap- 
ply to  the  term  "  issue."  So  that  if  a  bequest  were  made  to  Jl.  and 
his  issue,  with  a  power  for  Jl.  to  appoint  among  them  ;  or  if  the 
property  were  given  to  the  issue  as* tenants  in  common,  or  to  them, 
their  executors,  administrators  and  assigns,,  the  word  "  issue"  would 
be  construed  synonimous  with  children,  letting  in  grand-children, 
&c.  who  ansVer  the  description  of  issue. 

In  addition  to  the  cases  stated  and  referred  to  in  the  last  section, 
is  the  authority  of  Hockley  v.  Mawbey,(n]  in  which  John  Russell 
devised  freehold  and  leasehold  estates  "  to  his  wife  for  life,  remain- 
der to  his  son  Richard,  and  his  issue  lawfully  begotten  or  to  be  be- 
gotten, to  be  divided  among  them  as  Richard  should  think  fit." 
Lord  Thurlow  said,  it  was  clear  that  issue  were  not  intended  to 
take  as  heirs  in  tail,  but  distributively,  and  in  proportions  to  be 
fixed  by  the  son ;  and  that  by  the  word  "  issue,"  children  and  de- 
scendants from  the  son,  however  remote,  who  might  come  into  ex- 
istence during  his  life,  would  take  vested  interests,  subject  to  his  ap- 
pointment of  the  proportions  each  should  have  in  the  property. 

(«)  1  Ves.  jun.  143-149. 


92  Description  of  Legatees.  [Cn.  II. 

Our  next  inquiry  will  be, — 

SECT.  V.  The  persons  entitled  under  a  bequest  to 
"  RELATIONS.'' 

When  the  terms  adopted  by  a  testator  in  reference  to  the  objects 
of  his  bounty,  are  so  large  that  the  Court  cannot  discriminate  any 
particular  persons  intended  to  be  benefited,  as  in  the  instance  of  a 
legacy  to  "  relations"  generally,  or  to  "  relations  by  blood  or  mar- 
riage," without  enumerating  any  of  them  ;  the  Court,  in  order  to  per- 
form the  intention  by  giving  effect  to  the  bequest,  will  direct' the 
money  to  be  paid  to  such  of  the  testator's  relatives  as  would  be  en- 
titled under  the  Statute  of  Distributions  in  the  event  of  intestacy,(o) 
including  those  of  the  half  blood  equally  with  those  of  the  whole.(p} 
Lord  Thurlow  observed  in  relation  to  this  rule,  that  ".when,  first, 
cases  of  this  description  came  before  the  Court,  it  said,  that  to  avoid 
inconvenience,  the  best  way  was  to  adhere  to  the  statute  :  that  the 
first  cases  probably  were  thos.e  where  testators,  having  exhausted 
the  persons  whom  they  meant  as  objects,  intended  the  rest  for  the 
individuals  to  whom  the  law  would  give  it.(</)  The  principle  then, 
upon  which  a  Court  of  Equity  resorts  to  the  Statute  of  Distributions 
to  ascertain  the  legatees,  is  necessity,  in  consequence  of  particular 
objects  not  having  been  pointed  out  by  testators.  In  all  such  in- 
stances, the  statute  regulates  the  degree  as  also  the  proportions  in 
which  the  legatees  are  to  take,  subject  as  to  the  latter,  to  this  modi- 
fication :  that  if  the  will  specify  the  shares  into  which  the  fund  is  to 
be  divided,  so  far  the  statute  will  be  superseded,  and  the  division 
must  be  made  according  to  the  will,  among  the  legatees,  either  per 
capita,  or  per  stirpes  and  capita,  as  will  appear  from  the  cases  which 
will  be  afterwards  produced.  But  that  relations  more  remote  than 
those  included  within  the  statute  were  intended,  cannot  be  shown 
by  parol  evidence  ;  for  the  sense  of  words  as  fixed  by  legal  authority, 
is  not  to  be  altered  by  language  held  on  any  occasion  by  testators, 
or  by  their  behaviour. (r)  We  shall  proceed  to  consider, — 

1.  The  authorities  by  which  it  was  established,  that  under  a  be- 
quest to  "  relations,"  none  were  entitled  but  those  who,  in  case  of 
intestacy,  could  have  claimed  by  the  Statute  of  Distributions. 

In  Roach  v.  Hammond,(s)  the  testator  devised  his  real  and  per- 
sonal estates  to  the  defendant  "  for  the  use  of  his  relations ;"  and  the 
Court  decided  that  the  persons  to  take,  and  the  proportions,  were 
to  be  determined  by  the  Statute  of  Distributions ;  the  Chancellor 
remarking,  that  he  thought  it  the  best  measure  for  setting  bounds  to 
such  general  words.  Again, — 

•  In  Thomas  v.  Hole,(t)  the  testator  bequeathed  500Z.  "  to  the 
relations  of  Elizabeth  Hole,  to  be  equally  divided  between  them." 
When  the  testator  died,  Elizabeth  had  two  brothers  living,  and 
several  nephews  and  nieces,  the  children  of  a  deceased  brother. 
Lord  King  determined  two  points.  First,  that  no  relations  should 
take  under  the  above  description,  who  were  excluded  by  the  Statute 

(o)  22  &  23  Car.  II.  chap.  10,  explained  by  29  Car.  II.  chap.  30. 
(/O  Cotton  v.  Scarancke,  1  Mad.  45.  (y)  1  Bro.  C.  C.  33. 

(r)  1  Bro.  C.  C.  33.  (s)  pre.  Ch.  401 

(0  Forrest,  251.  and  see  Masters  v.  Hoofier,  4  Bro.  C.  C.  207.  5.  P. 


SECT.  V.]  Description  of  Legatees.  93 

of  Distributions  ;  and,  secondly,  that  the  distribution  should  be  equal 
among  the  persons  included  in  the  statute  per  capita  as  directed  by 
the  will ;  so  that  each  of  the  nephews  and  nieces  was  entitled  to  the 
same  share  as  each  brother  ;  a  division  contrary  to  the  statute,  which 
directs  that  the  children  of  deceased  brothers  and  sisters  shall  only 
succeed  to  the  shares  of  their  parents. 

And  in  Green  v.  Howard,(u)  the  testator  gave  4000Z.  to  his  wife 
for  life,  remainder  "  to  his  own  relations,  who  should  be  then  alive." 
There  were  several  legacies  in  the  will  to  first  and  second  cousins  ; 
and  it  was  in  evidence,  that  the  testator  was  accustomed  to  receive 
his  second  cousins  with  equal  kindness  as  the  first.  The  second 
cousins  therefore  claimed  to  participate  with  the  first  in  the  legacy 
of  4000Z.  But  Lord  Thurlow,  C.  decided  against  the  claim,  and  re- 
jected the  evidence  to  explain  the  legal  sense  of  the  word  relations. 

The  last  case  appears  to  be  an  authority  for  the  proposition,  that 
the  gift  of  the  legacies  to  relations  in  a  degree  farther  removed  than 
those  entitled  under  the  Statute  of  Distributions,  will  not  be  suffi- 
cient to  include  them  in  a  bequest  to  "  relations"  upon  the  ground 
of  presumptive  intention.  The  principle  seems  to  be  this:  that  when 
a  rule  has  once  been  established,  it  is  most  eligible  to  adhere  to  it, 
and  not  to  permit  exceptions  upon  mere  conjecture  or  refined  specu- 
lation. Lord  Thurlow,  acting  upon  that  principle  in  the  next  case, 
as  in  the  last,  determined,  that  although  the  testator  excepted,  out  of 
a  bequest  to  relations,  a  nephew,  whose  mother  was  living,  such 
circumstance  was  insufficient,  upon  presumed  intention  to  let  in 
other  nephews  and  nieces  of  living  parents  to  take  with  the  testator's 
surviving  sisters  and  the  children  of  his  deceased  brother. 

Thomas  Mowbray(x]  devised  his  real  estate  in  trust  for  his  wife 
for  life,  directing  his  trustee  to  sell  the  lands  after  his  wife's  death, 
and  "  fo  divide  and  pay  the  proceeds  to  and  among  all  and  every 
such  person  and  persons  who  should  appear  to  be  related  to  him  (the 
testator)  only"  in  equal  shares  (except  his  nephew,  John  Wood.) 
The  question  was,  whether  any  persons  could  take  shares  of  the 
property  but  those  who  were  entitled  under  the  Statute  of  Distribu- 
tion 1  The  claimants  were  surviving  sisters  of  the  testator,  children 
of  a  deceased  brother,  and  children  of  surviving  sisters  ;  and  it  was 
insisted  for  the  latter  children,  that  the  testator,  in  excluding  the  ne- 
phew, whose  mother  was  living,  and  who  consequently  was  not  one 
of  the  next  of  kin  of  the  testator,  clearly  intended  to  comprise  indi- 
viduals in  the  term  relations,  who  were  allied  to  him  in  the  same  de- 
gree as  the  excluded  nephew.  But  Lord  Thurlow  was  of  a  different 
opinion,  for  the  reasons  before  mentioned. 

Lord  Rosslyn  also  adhered  to  the  rule  in  Devisme  v.  Mellish,(y)  in 
which  the  testator  bequeathed  501.  for  a  mourning  ring  "  to  each  of 
his  relations  by  blood  or  marriage."  The  question  was,  what  rela- 
tions were  entitled'?  It  was  contended,  that  the. word  "relations" 
must  be  confined  to  the  Statute  of  Distributions,  and  to  persons  who 
had  married  relatives  entitled  under  that  Act.  And  so  his  Lordship 
decreed. 

It  may  be  proper  to  notice,  that  the  rule  has  not  been  confined  to 
a  court  of  equity,  but  has  been  adopted  by  a  court  of  law  in  regard 

(«)  1  Bro.  C.  C.  31.    (x)  Rayner  v.  Mo-wbray,  3  Bro.  C.  C.  234.     (y)  5  Ves.  529. 


94  Description  of  Legatees.  [Cn.  II. 

to  freehold  estates.  Mansfield,  C.  J.  of  the  Court  of  Common  Pleas, 
observing,  that  since  the  word  "  relations"  was  held  to  mean  in  a 
court  of  equity,  those  persons  who  were  entitled  under  the  Statute  of 
Distributions,  he  did  not  see  why  it  should  riot  receive  the  same  con- 
struction in  a  court  of  law.(2) 

As  the  same  uncertainty  in  the  description  exists  in  the  words  "  to 
my,  or  who  are,  my  near  relations ;"  the  generality  of  the  expres- 
sions will  be  restrained  to  persons  entitled  under  the  Statute  of  Dis- 
tribution. 

Thus,  in  Whithorw  v.  Harris,(a)  Mrs.  Withorne  bequeathed  in 
these  words  :  "  I  give  to  all  and  every  person  and  persons  who  are 
near  relations  to  me,  if  any  such  there  be,  250Z.  to  be  paid  within  a 
year  after  my  decease  ;  but  if  there  be  any  such  person  or  persons 
who  are  related  to  me,  and  do  not  apply  for  payment  within  that 
time,  then  I  give  the  said  sum  to  my  executors."  No  nearer  relations 
than  first  cousins  applied  within  the  year,  yet  a  question  arose 
whether  second  cousins  were  not  included  as  "  near  relations'?"  And 
Lord  Hardwicke  declared,  that  the  testatrix's  next  of  kin  were  alone 
entitled,  and  ordered  the  legacy  to  be  paid  to  the  first  cousins. 

The  particular  objects  intended  by  a  testator,  are  rendered  a  little 
more  certain  by  his  prefixing  the  word  "poor"  to  that  of"  relations." 
The  Court,  therefore,  has  not  implicitly  followed  the  Statute  of  Dis- 
tributions in  this  instance ;  but  as  Lord  Thurlmo  observed  in  Green 
v.  Howard,(b)  it  has  shown  particular  favour  to  one  or  more  relations, 
according  to  their  greater  need.  Suppose  then,  a  legacy  be  given 
to  the  testator's  "  poor"  or  "necessitous"  relations,  the  Court  would 
so  far  adhere  to  the  statute,  as  to  limit  the  number  to  his  next  of 
kin,  and  depart  from  it  in  distributing  the  property  among  such  of 
that  number  as  were  poor,  and  in  want  of  assistance  in  exclusion  of 
the  rest. 

In  an  anonymous  case,(c)  a  testator  bequeathed  the  surplus  of  his 
personal  estate  to  his  "  poor  relations."  The  question  seems  to  have 
been,  whether  the  Countess  of  Winchelsea,  who  was  one  of  the 
next  of  kin,  and  whose  circumstances  were  greatly  inadequate  to  the 
support  of  her  rank,  was  entitled  to  a  share  of  the  residue  under  the 
description  of  a  poor  relation,  and  it  was  determined  in  the  affirma- 
tive. 

Notwithstanding  the  observation  of  the  reporter  at  the  foot  of 
the  case,  it  would  'seem  that  the  decision  is  perfectly  correct.  The 
objects  were  to  be  poor  relations.  The  countess  not  only  answered 
the  description,  but  was  also  one  of  the  testator's  next  of  kin.  There 
appears,  therefore,  to  have  been  no  good  reason  to  exclude  her  from 
a  share  of  the  residue. 

The  last  case  was  followed  by  Sir  Thomas  Sewell,  M.  R.  in 
Brunsden  v.  Woolredge,(d)  in  which  the  testator  directed,  that  after 
the  death  of  his  two  brothers,  without  having  children,  a  sum  of  500Z. 
"  should  be  equally  distributed  among  his  mother's  poor  relations." 
The  brothers  died  without  children  ;  and  the  mother's  next  of  kin 

(z)  See  Doe  v.  Overt  I  Taunt.  263-269.  Sfiring  ex  dem.  Titcher  v.  Biles,  1 
Term  Rep.  435.  438.  in  a  note.  (a)  2  Ves,  sen.  527.  and  see  19  Ves.  403. 

(b)  1  Bro.  C.  C.  31.  and  see  2  Ves.  sen.  87-110.  (c)  1  P.  Will.  327. 

(rf)  Ambl.  507.     1  Dick.  380.  S.  C. 


SECT.  V.]  Description  of  Legatees.  95 

were  nephews  and  nieces.  There  were  also  great  nephews,  &c. 
And  the  question  was,  who  were  entitled  under  the  above  descrip- 
tion *?  It  appears  from  Dickens,  whose  report  corrects  that  of  Am- 
bler, that  Sir  Thomas  Sewell  limited  the  number  of  relations  accord- 
ing to  the  Statute  of  Distributions,  and  divided  the  fund  among  the 
poor  of  that  class ;  consequently,  grand-nephews,  &c.  (not  being 
within  the  statute)  were  excluded.  Mr.  Dickens  thus  reports  the 
words  of  that  Judge  : — "  The  question  in  the  cause  is,  who  are  poor 
relations  °l  Relations  must  be  confined  to  next  of  kin  ;  and  poor  re- 
lations must  be  such  as  want  assistance,  and  are  next  of  kin  according 
to  the  statute. "(e) 

Since  it  appears  to  be  the  sole  intention  of  the  testator  to  make 
provision  for  his  poor  relations,  it  necessarily  follows  that  claimants 
to  be  successful  must  answer  that  description  when  the  fund  is  to  be 
distributed ;  for  if  a  relation  who  was  poor,  become  rich  before  the 
period  of  division,  he  will  be  excluded. (f) 

The  same  "rules  of  construction  seem  to  apply  when  the  terms  of 
bequest  are  "  to  my  most  necessitous"  or  "  poorest"  relations,  as  to 
"  my  poor  relations."  It  appears  convenient  to  adopt  the  statute  in 
fixing  the  number  of  relatives,  and  then  to  divide  the  fund  among 
the  most  indigent  individuals  in  that  number,  when  there  are  more 
persons  than  one  answering  the  description  of  next  of  kin  ;  for  it 
would  seem  from  the  case  next  stated,  that  if  the  next  of  kin  were 
only  one  individual,  he  would  take  the  whole. 

In  Widmore  v.  Woodroffe,(g)  the  testator  Widmore  directed  a  third 
part  of  his  residuary  personal  estate  "  to  be  distributed  among  the 
most  necessitous  of  his  relations  by  the  father  and  mother's  side." 
The"  question  was;  whether  Mary  Woodrojfe,  the  sole  next  of  kin 
of  the  testator,  should  take  the  whole  third  ;  or  whether  two 
other  persons  in  a  more  remote  degree  of  kindred  should  partici- 
pate with  her  *?  For  the  two  latter  persons,  the  word  necessitous 
was  relied  upon,  together  with  the  direction  for  a  distribution  of 
the  fund.  But  Lord  Hardwicke  was  of  opinion,  that  the  statute 
was  to  be  adhered  to,  and  that  Mary,  being  sole  next  of  kin,  was 
alone  entitled. 

It  is  observable  in  the  last,  as  the  former  case  of  Woolredge  v. 
Brunsden,  the  legacies  were  to  be  distributed  among  "  poor,"  and 
"  most  necessitous"  relations,  but  by  whom  is  not  mentioned ;  so 
that  no  special  confidence  was  placed  in  any  particular  person  to 
make  a  selection  of  the  objects,  an  omission  which  distinguishes  the 
two  cases  from  those  to  be  afterwards  stated.  Since  therefore  the 
relations  to  take  under  the  above  descriptions  were  to  be  ascertained 
by  a  court  of  equity,  it,  as  usual,  called  in  the  assistance  of  the 
Statute  of  Distributions. 

The  term  "  relations"  will  be  equally  confined  to  the  limits  of  the 
statute,  where  a  power  is  delegated  to  a  person  to  fix  the  amount  of 
the  share  that  each  relation  is  to  take,  without  entrusting  him  with  a 
selection^of  the  objects  ;  for  in  such  a  case,  the  act  appoints  the  per- 
sons, viz.  "  the  next  of  kin"  in  existence  at  the  death  of  the  testator. 
They  then  take  vested  interests,  subject  only  to  be  altered  in  amount 

(e)  See  distinction  by  Sir  William  Grant,  17  Ves.  374. 

(/)  1  Scho.  &  Lefroy,  111.  (#)  Ambl.  636. 


96  Description  of  Legatees.  [Cn.  II. 

by  an  exercise  of  the  power,  which  if  not  at  all,  or  not,  legally  exe- 
cuted, a  court  of  equity  will  direct  the  property  to  be  divided  among 
them  according  to  the  statute,  in  exclusion  of  such  of  them  as  may 
afterwards  happen  to  answer  the  description,  at  the  death  of  the 
donee  of  the  power. 

Thus  in  Pope  \.  Whitcombe,(h)  James  Childe  bequeathed  his  resi- 
duary estate  to  his  wife  for  life,  remainder  to  his  son  absolutely,  if 
he  attained  the  age  of  twenty-one,  but  if  he  died  before  that  period, 
and  without  issue,  the  testator,  after  giving  some  legacies,  directed 
his  wife  to  dispose  of  the  residue  "  among  his  relations,  in  such 
manner  as  she  should  think  proper."  The  contingencies  happened 
upon  which  the  power  was  to  arise,  and  the  wife  not  having  made  a*" 
good  appointment  in  consequence  of  distributing  the  fund  among 
persons  not  within  the  statute,  Sir  W,  Grant,  ordered  it  to  be  divid- 
ed among  the  next  of  kin  of  the  testator  at  his  death. 

We  shall  next  consider  : 

2.  When  the  indefinite  term  "  relations,"  will  be  permitted  to  com- 
prise relatives  more  distant  than  those  mentioned  in  the  Statute  of 
Distributions. 

In  treating  of  the  subjects  belonging  to  this  sub-division,  we  shall 
consider  them  as  exceptions  to  the  general  rule,  that  in  bequests  to 
relations,  none  but  next  of  kin  are  entitled;  and  the  exception  with 
which  we  commence,  shall  be^ 

FIRST,  where  the  terms  of  bequest  are  to  "poor  relations." 

It  appears  from  the  cases  before  stated,  that  a  legacy  to  "  poor  re- 
lations" is  to  be  regulated  by  the  Statute  of  Distributions ;  but  the 
authority  about  to  be  produced  is  an  instance  of  an  apparently  simi- 
lar bequest,  which  was  holden  to  comprehend  relatives  more  remote 
in  degree  than  those  within  the  limits  of  the  Statute  of  Distributions. 
To  reconcile  this  with  the  former  cases,  recourse  must  be  had  to  a 
distinction  which  exists,  when  a  legacy  is  given  to  "  poor  relations," 
as  a  charity  to  be  continued  and  enjoyed  by  persons  in  succession 
answering  the  description,  and  when  it  is  given  among  individuals, 
required  at  the  period  of  distribution,  to  be  "  poor  relatives,"  and 
that  distribution  is  to  be  once  only  and  final.  In  -the  latter  case,  it 
has  been  shown,  that  the  statute  regulates  the  number  and  degrees 
of  relations  to  take  under  such  a  description  ;  but  in  the  former,  un- 
less a  court  of  equity  were  to  consider  the  bequest  in  the  class  of 
charitable  dispositions,  it  would  be  void,  as  preventing  the  circulation 
of  personal  property  beyond  the  limits  allowed  by  law.  When 
therefore  it  appears  from  the  will,  that  a  testator  intended  to  appro- 
priate a  sum  of  money  not  only  for  his  then  existing  poor  relations, 
but  for  those  to  succeed  without  limitation  as  to  time,  a  court  of 
equity  will  support  the  bequest  as  a  charity  ;  and  admit,  without  re- 
gard to  the  Statute  of  Distributions,  all  the  testator's  poor  relations 
of  his  own  blood,  to  be  ascertained  by  a  master  of  the  Court,  upon 
a  plan  or  scheme  laid  before  jjim. 

Thus,  in  White  v.  White,(i)  the  legacy  was  of  3000Z.  stock,  for  the 
purpose  of  putting  out  "  our  poor  relations"  apprentices.  Sir  Wil~ 

(A)  SMeriv.  689. 

(t)  7  Yes.  423,  and  see  Isaac  v.  De  Friez,  in  a  note,  17  Ves.  373,  incorrectly  re- 
ported in  Ambl.  595. 


SECT.  V.]  Description  of  Legatees.  97 

Ham  Grant,  M.  R.  supported  the  bequest  as  a  charity,  which  would 
otherwise  have  been  void  for  the  reason  before  mentioned. 

His  Honour  also  made  a  similar  decision,  and  for  the  same  reason, 
in  the  Attorney  General  v.  Price,(k)  upon  the  following  bequest : 
"  Also  that  at  what  time  soever  the  possession  of  the  same  premises 
shall  come  to  him  by  virtue  of  this  my  will,  yearly  from  thenceforth 
he,  the  said  EvanJohnes,  and  his  heirs  shall  for  ever  divide  and  dis- 
tribute according  to  his  and  their  discretion,  among  my  poor  kinsr 
men  and  kinswomen,  and  among  their  offspring  and  issue,  which 
shall  dwell  within  the  county  of  Brecon,  the  sum  of  201.  by  the 
year,  without  fraud  and  collusion."  An  inquiry  was  directed  after 
all  the  testator's  poor  relations  within  that  county. 

SECOND.  Another  exception  to  the  general  rule  will  happen  when 
a  testator  has  delegated  a  power  to  an  individual  to  distribute  the 
fund  among  his  (the  testator's)  relations,  according  to  his  discretion, 
In  such  an  instance*  whether  the  bequest  be  made  to  "  relations" 
generally,  or  to  "  poor,"  or  "  poorest,"  or  "  most  necessitous"  rela- 
tions, the  person  may  exercise  his  discretion  in  distributing  the  pro- 
perty among  the  testator's  kindred,  although  they  be  not  within  the 
Statute  of  Distributions. 

Accordingly,  in  Mahon  v.  Savage,(l)  the  testator  gave  to  his  exe~ 
cutor  Savage  10001.  to  be  distributed  among  his  poor  relations,  or 
such  other  objects  of  charity  as  should  be  mentioned  in  his  private 
instructions  to  his  executors  ;  but  of  which  there  was  no  appearance. 
Upon  a  reference  to  the  Master  to  inquire  who  were  the  testator's 
poor  relations,  he  reported  a  number  exceeding  fifty,  many  of  whom 
were  related  to  him  beyond  the  degree  prescribed  by  the  Statute  of 
Distributions.  Lord  Redesdale  held,  that  the  intention  was  charity, 
and  the  gift,  not  to  relations  merely,  but  to  relations  as  objects  of 
charity;  and  that  the  executors  had  a  discretionary  power  of  ap- 
pointment, so  as  not  to  be  under  the  necessity  of  including  all  the 
testator's  poor  relatives ;  and  it  appears  from  the  decree  referring  to 
the  Master's  report,  that  the  executors  were  not  restrained,  in  the 
exercise  of  their  discretion,  to  relations  within  the  Statute  of  Dis- 
tributions ;  for  they  were  to  be  at  liberty  to  lay  before  the  Master  a 
plan  for  distributing  the  fund  among  the  poor  relations  named  in  the 
report,  according  to  their  discretion. 

So  in  Spring  on  the  demise  of  Titcher  v.  Biles,(m]  the  testator 
empowered  his  wife  to  dispose  of  his  residuary  real  and  personal 
estates  by  will  "  to  and  among  such  of  his  relations  as  should  be 
living  at  his  death,  in  such  shares  -as  she  should  think  proper."  The 
wife  appointed  the  lessor  of  the  plaintiff,  who  was  a  relation  of  the 
testator,  but  not  within  the  Statute  of  Distributions  ;  for  which  rea- 
son it  was  contended  that  the  appointment  was  void.  But  the  Court 
of  King's  Bench  were  of  a  different  opinion ;  holding  that  the  power 
was  discretionary,  and  might  be  exercised  in  favour  of  any  one  re- 
lation. 

And  if  a  suit  in  Chancery  be  instituted  for  tho  administration  of 
assets  under  the  direction  of  that  Court,  it  will  ascertain  the  num- 
ber of  relations,  and  order  the  property  intended  for  them  to  be  dis- 

f£)  17  Ves.  371.  (/)  1  Scho.  &  Lefroy,  111,  and  see  16  Ves,  43, 

(m)  1  Term  Rep.  435,  8va  ed.  in  notes, 
VOL.  I.  N 


98  Description  of  Legatees.  [Cn.  II. 

tributed  among  such  of  them,  and  in  the  proportions  the  executors 
or  other  persons  entrusted  with  the  selection  shall  propose,  in  a  plan 
approved  of  by  a  Master.  This  was  .done  in  the  case  of  Mahon  v. 
Savage,  before  stated. 

So  in  Bennett  v.  Honeywood,(n)  the  testator  bequeathed  20,0001. 
by  a  codicil  to  his  executors,  in  trust  to  distribute  and  dispose  of, 
"  among  such  of  his  relations  by  consanguinity,  and  not  by  mar- 
riage, as  should  not  appear  to  them  to  be  worth,  each  person  more 
than  20001.  and  who  should  apply  for  shares  within  two  years  after 
his  death :  the  distribution  to  be  made  among  such  of  his  relations 
as  aforesaid,  at  the  times,  and  in  the  manner  and  proportions,  or 
disproportions,  as  his  executors  in  their  discretion  should  judge  to 
be  most  proper :"  those  circumstances  being  referred  entirely  to 
the  judgment  and  discretion  of  his  executors.  There  were  many 
claimants :  and  Lord  Camden,  C.  ordered  a  Master  to  ascertain  the 
number  of  relations  entitled  under  the  codicil,  and  then  directed  the 
distribution  of  the  legacy  to  be  made  by  the  executors  according  to 
their  own  judgment  and  discretion,  provided  they  allotted  some 
share  to  each  person  entitled  to  the  money. 

This  power  and  discretion  to  executors  or  trustees  is  a  personal 
trust  or  confidence  reposed  in  them  as  individuals,  and  not  a  minis- 
terial duty  flowing  from  that  office,  and  therefore  cannot  be  dele- 
gated to  another.  When  the  authority,  therefore,  is  given  to  two 
or  more  persons,  without  mentioning  the  survivors,  and  one  of  them 
dies  or  declines  to  act,  it  cannot  be  exercised  by  those  who  remain, 
either  alone  or  even  with  the  concurrence  of  a  new  trustee  appointed 
by  the  Court  of  Chancery  in  the  place  of  the  deceased. (o)  And  if 
the  power  be  given  to  the  survivor  of  two  executors  or  trustees, 
without  naming  his  executors,  and  he  die  before  exercising  it,  the 
authority  will  determine,  since  his  executors  are  not  entrusted  with 
the  execution  of  the  power  ;(p)  which  being  personal,  the  persons 
to  exercise  it  must  be  quasi  persona  designate  of  the  testator,  as 
the  executors  of  a  surviving  executor  or  trustee  may  be  when  nomi- 
nated by  the  original  testator.  But  the  representatives  so  desig- 
nated must  precisely  answer  the  description  and  intention  of  the 
will,  or  the  power  will  fail.  To  illustrate  this  :  Suppose  a  testator 
to  appoint  A,,  B.  andC.  his  executors  and  trustees,  with  a  power  for 
them,  and  the  survivors,  and  the  heirs,  executors,  and  administrators 
of  the  survivor,  to  distribute  his  real  and  personal  estates  among 
such  of  his  relations  as  they  in  their  discretion  shall  think  proper : 
that  A.,  B.  and  C.  died  without  executing  the  power,  and  that  C. 
the  survivor  passed  the  trust-property  by  will  to  trustees  for  the  only 
and  express  purposes  of  the  will  of  the  original  testator,  nominating 
them  also  executors  for  those  objects,  and  appointing  other  exe- 
cutors of  his  own  property.  In  such  a  case  the  power  would  be 
extinct  by  the  death  of  C. ;  because  it  having  been  at  first  given  to 
the  same  persons  uniting  in  themselves  the  offices  of  executors  and 
trustees,  to  whom  were  given  both  funds  for  the  sake  of  discre- 
tionary distribution,  it  is  required  that  those  who  succeed  them  for 

(n)  Ambl.  708. 

(o)  Dot/ley  v.  the  Attorney  General,  4  Vin.  Abr.  485.  pi.  16.  7  Ves.  58.  in 
note,  S.  C.  (/z)  Flanders  v.  Clark,  1  Ves.  sen.  9. 


SECT.  V.]  Description  of  Legatees.  99 

the  purpose  of  executing  the  power  should  be  both  heir  and  exe- 
cutors, and  not  that  the  land  should  go  to  one  as  heir,  and  the  per- 
sonal estate  to  others  as  executors ;  so  that  in  the  case  supposed  the 
trustees  of  C.  could  not  execute  the  power,  because  it  was  inca- 
pable of  delegation,  and  none  of  them  was  the  heir  of  C. :  neither 
could  it  be  exercised  by  the  heir  of  C.  for  he  was  not  also  executor ; 
nor  could  it  be  executed  by  the  executors  of  C.  because  no  one  of 
them  was  his  heir.  When  the  power  fails  under  such  or  any  other 
circumstances,  the  object  of  the  devise  will  not  be  disappointed ; 
for  the  disposition  is  a  mixture  of  trust  and  power,  and  the  extinc- 
tion of  the  latter  does  not  affect  the  former.  A  court  of  equity, 
therefore,  will  perform  the  trust  expressed  to  be  for  relations,  and 
distribute  the  funds  in  the  degrees  and  proportions  mentioned  in  the 
Statute  of  Distributions,  among  the  testator's  next  of  kin  in  exist- 
ence at  the  death  of  the  donee  of  the  power,  and  not  of  the  testator ; 
because,  until  appointment  or  the  death  of  the  donee  of  the  power, 
no  relatives  take  vested  interests  in  the  property,  but  the  whole  is 
contingent ;  and  who  may  be  the  persons  entitled,  whether  those 
included  or  hot  included  within  the  Statute  of  Distributions,  or  both, 
is  a  point  of  absolute  uncertainty.  In  Cruwys  v.  Coleman,(q]  Sir 
William  Grant  observed,  that  "  according  to  Harding  v.  Glyn 
(after  stated),  where  a  power  of  selection  is  given  in  favour  of  the 
testator's  own  relations,  and  that  power  is  not  executed,  the  pro- 
perty undisposed  of,  will  go  to  the  next  of  kin,  at  tlie  death  of  the 
party  who  had  the  power. 

All  these  points  were  considered  in  the  recent  case  of  Cole  v. 
Wade,(r}  where  the  testator  Booth  gave  all  his  real  and  personal 
estates  to  Messrs.  Ruddle  fy  Wade,  whom  he  appointed  executors  of 
his  will,  their  executors,  administrators  and  assigns,  upon  the  trusts 
of  it,  and  particularly  as  to  all  the  residue  of  his  real  and  personal 
estates,  to  dispose  of  them  for  the  benefit  of  "  such  relations  and 
kindred  a*  they  should  think  proper"  And  after  they  were  ascer- 
tained by  sufficient  evidence,  he  ordered  his  trustees  and  executors 
to  convey  and  dispose  of  both  funds  "  unto  and  among  such  of  his 
relations  and  kindred,  in  the  proportions,  manner,  and  form  as  his 
said  executors  should  think  proper ;"  at  the  same  time  recommend- 
ing the  greatest  share  to  be  given  to  the  persons  whom  they  should 
think  to  be  his  nearest  relations ;  but  he  declared  that  he  did  not 
mean  by  such  recommendation  to  control  the  discretion  of  his  exe- 
cutors and  trustees,  it  being  his  intention  that  such  discretion  "  in 
his  said  trustees  and  executors,  and  the  heirs,  executors  and  adminis- 
trators of  the  survivor  of  them,"  should  be  absolute  in  every  partic- 
ular relating  to  that  disposition,  as  well  to  decide  who  were  re- 
lations, as  the  proportions  they  should  be  respectively  entitled  to  in 
the  residue.  Wade  survived  his  co-executor  and  trustee,  and  devi- 
sed all  the  property  to  Messrs.  Bray,  two  trustees,  for  the  purposes 
expressed  in  the  will  of  Mr.  Booth,  and  whom  he  made  executors  for 
those  objects  solely.  Under  these  circumstances,  Sir  W.  Grant  de- 
cided— 1.  That  the  power  being  confidential  and  personal,  was 
gone  by  the  death  of  the  surviving  execufor  and  trustee.  2.  That  it 
could  not  be  delegated,  and  consequently  the  will  of  the  surviving 

(y)  9  Ves,  325.  (r)  16  Ves .  2r-43. 


100  Description  of  Legatees.  [Cn.il. 

executor  and  trustee  was  so  far  inoperative.  3.  That  the  defect  was 
not  remedied  by  the  original  testator  declaring  the  discretionary 
power  to  belong  to  the  "  heirs,  executors  and  administrators"  of  the 
surviving  trustee,  because  he  intended  the  heirs  and  executors  or  ad- 
ministrators of  such  trustee  to  be  the  same  person  or  persons,  which 
appeared  from  the  original  trustees  and  executors  being  the  same 
individuals,  their  interests  and  powers  being  co-equal  and  co-exten- 
sive ;  so  that  the  trustees  in  the  will  of  the  surviving  executor  and 
trustee  of  Mr.  Sooth,  not  being  his  heir,  did  not  answer  the  descrip- 
tion in  Mr.  Booth's  will,  and  could  not  execute  the  power.  4.  That 
the  distribution  of  the  property  should  be  made  by  the  Court :  and 
lastly,  That  the  objects  of  distribution  were  "  next  of  kin"  living  at 
the  testator's  death. 

The  decision  upon  the  last  point  can  only  be  reconciled  with  pre- 
ceding determinations,  and  his  Honour's  own  declaration  in  Cruwys 
V.  Coleman  before  mentioned,  under  the  supposition  that  the  trus- 
tees and  executors  had  not  the  power  of  selecting  the  objects,  but 
merely  of  apportioning  the  shares,  a  construction  which  it  may  be 
thought  difficult  to  support  upon  the  will  last  stated. 

The  case  of  Harding  v.  Glyn,(s)  is  a  principal  authority  upon  the 
subject  of  the  present  exception.  The  bequest  after  the  death  of  the 
testator's  wife,  (to  whom  he  gave  a  leasehold  house,  and  several  arti- 
cles of  personal  estate  for  life,)  was,  "  unto  and  among  such  of  his 
own  relations  as  she  should  think  most  deserving  and  approve  of." 
The  wife  appointed  the  house  by  will,  to  a  Mr.  Swindell,  who  was 
related  to  the  testator,  but  not  within  the  Statute  of  Distributions, 
and  she  made  no  appointment  of  some  parts  of  the  personalty.  The 
"  Master  of  the  Rolls"  determined  first,  that  the  appointment  of  the 
house  was  valid,  although  the  appointee  was  not  one  of  the  testa- 
tor's next  of  kin  :  secondly,  that  the  personalty  undisposed  of  was 
to  be  distributed  by  the  Court  under  the  Act ;  and  lastly,  that  the 
objects  of  distribution  were  next  of  kin  of  the  testator,  at  the  death 
of  his  wife,  the  donee  of  the  power. 

The  next  case  of  Gower  v.  Mainwaring,(t)  shows  that  there  is  no 
distinction  between  a  will  and  a  deed  upon  this  subject. 

There  Mr.  Mainwaring  by  deed,  directed  his  trustees  (three  in 
number,)  to  give  his  residuary  real  and  personal  estates  "  among 
his  friends  and  relations,  where  they  should  see  most  necessary,  and 
as  they  should  think  most  equitable  and  just."  Two  of  the  trustees 
died,  and  the  third  declined  to  act.  Lord  Hardwicke  ordered  the 
fund  to  be  divided  between  a  brother  and  nephew  of  Mr.  Main- 
waring,  according  to  their  necessities  and  circumstances  with  the 
approval  of  a  Master  of  the  Court. 

THIRD. — It  is  presumed  that  a  further  exception  to  the  rule  which 
confines  the  word  "  relations"  to  next  kin,  may  occur  where  a  tes- 
tator has  fixed  a  certain  test,  by  which  the  number  of  relatives  in- 
tended by  him  to  participate  in  his  property,  can  be  ascertained. 
In  such  a  case,  as  there  exists  no  impracticability  to  execute  the 
intention,  it  should  seem  that  a  court  of  equity  would  distribute  the 

(*)  1  Atk.  469.  and  stated  from  Reg.  Lib.  1738;  A.    5  Ves.  501.  and  see  JDoyley 
v.  Att.  ten.  4  Vin.  Abr.  485.  pi.  16.  &  P. 
(0  2  Ves.  sen,  87.  110. 


SECT.  V.]  Description  of  Legatees.  101 

funds  among  all  the  testator's  relatives  answering  the  description, 
although  some  of  them  might  happen  not  to  be  within  the  degree 
of  the  Statute  of  Distributions. 

Suppose,  then,  a  legacy  to  be  given  to  such  relations  of  the  tes- 
tator as  should  not  be  worth  500Z.  It  is  inferred  from  the  case  of 
Bennett  v.  Honey  wood,(u)  and  for  the  reasons  before  mentioned,  that 
the  kindred  of  the  testator,  establishing  before  a  Master,  that  their 
property  is  within  the  standard  sum,  will  be  entitled  to  shares  of 
the  bequest,  without  regard  to  the  limits  prescribed  by  the  Statute 
of  Distributions. 

FOURTH.— 'The  principle  of  the  last  exception,  establishes  ano- 
ther, viz.  where  a  testator  has  shown  an  intention  in  his  will,  (for  it 
cannot  be  done  by  parol  evidence)(x)  to  comprehend  relations  more 
remote  than  those  entitled  under  the  statute  ;  in  that  case  his  inten- 
tion will  prevail,  because  the  statute  is  only  substituted  from  neces- 
sity, as  before  noticed. 

Thus  in  Greenwood  v.  Greenwood,(y)  a  testatrix  bequeathed  her 
residuary  estate  to  be  divided  between  her  relations,  i.  e.  the  Green- 
woods, the  Everits,  and  the  Dows.  The  Everits,  although  not  re- 
lated to  the  testatrix  within  the  statute,  were  permitted  to  take  joint- 
ly with  her  next  of  kin,  the  Greenwoods  and  the  Dows,  for  the  term 
relations  is  explained  by  the  context  of  the  will,  and  extended  be- 
yond the  confines  of  the  statute. 
We  proceed  to  consider — 

3.  When  the  word  "  relations"  or  "  relation"  may  be  so  qualified 
as  to  exclude  some  of  the  next  of  kin  from  participating  in  the  be- 
quest ;  and  this  will  happen  when  the  terms  of  bequest  are  to  "  near- 
est relations."  The  only  ambiguity  of  those  words  arises  from  the 
omission  of  the  testator  to  name  the  individuals  who  answer  the  des- 
cription ;  but  this  obscurity  is  removed  with  the  same  facility  as  in 
discovering  who  are  next  of  kin  in  cases  of  intestacy.  There  is, 
therefore,  no  necessity  for  a  court  of  equity  to  resort  to  the  statute, 
to  give  partial  effect  to  the  intention  of  the  testator ;  so  that,  whoso- 
ever is  the  nearest  relation  will  be  entitled  to  the  legacy,  in  prefer- 
ence to  all  others,  although  some  of  them  would  have  been  admit- 
ted under  the  statute,  if  there  had  been  an  intestacy.  As  an  ex- 
ample : 

In  Smith  v.  Campbell,(z)  Mr.  Smith  while  stationed  in  India,  be- 
queathed that  his  residuary  property  should  be  "  equally  distributed 
among  his  nearest  surviving  relations."  He  left  at  his  death  a  bro- 
ther and  sisters,  and  nephews  and  nieces,  the  children  of  a  deceased 
brother.  And  Sir  W.  Grant,  M.  R.  decided,  that  the  brothers  and 
sisters,  as  nearest  of  kin  to  the  testator,  were  entitled  in  exclusion 
of  the  nephews  and  nieces. 

In  a  prior  case  of  Marsh  v.  Marsh,(a]  Lord  Rosslyn  made  a  simi- 
lar determination.  There  Mr.  MUbourne  bequeathed  the  residue  of 
his  personal  estate  upon ,  a  contingency  (which  happened)  unto  his 
"  nearest  relation."  The  claimants  were  a  half  sister,  and  the  chil- 
dren of  a  deceased  half-brother.  His  Lordship  decreed  the  whole 

(u)  Ambl.  708-710.  (.r)  Ambl.  71.     1  Bro.  C.  C.  33. 

(t/)  1  Bra  C.C.  32.  in  a  note,  and  on  this  subject  see  Stamfi  v.  Cooke,- 1  Cox,  235. 

(z)  19  Ves.  400.    Coop.  275.  S.  C.  (a)  1  Bro.  C.  C.  293. 


102  Description  of  Legatees.  [On.  II. 

fund  to  the  half-sister,  as  being  more  nearly  related  to  the  testator 
than  the  children  of  the  half-brother. 

It  was  remarked  by  Lord  Rosslyn  in  the  last  case,  and  decided  by 
by  Sir  W.  Grant  in  the  one  stated  before  it,  that  if  there  had  been 
more  persons  than  one  in  the  same  degree  of  kindred,  there  must 
have  been  a  division  among  them,  because  each  would  have  been 
nearest  relation.  Hence  it  appears,  that  the  word  "  relation"  is  (as 
observed  by  Lord  Hardwicke  in  Pyot  v.  Pyot,(b)  nomen  collectivism 
as  much  as  "  heir,"  and  when  preceded  by  nearest  includes  all  re- 
lations in  the  same  degree. 

The  case  of  Edge  v.  Salisbury, (c)  has  generally  been  considered 
as  a  determination  by  Lord  Hardwicke,  that  nearest  when  prefixed 
to  "relations"  will  not  prevent  the  application  of  the  Statute  of 
Distributions,  so  as  to  exclude  any  of  the  next  of  kin  from  participa- 
ting in  the  bequest  couched  in  those  terms,  although  they  be  not  in 
equal  degree  of  kindred.  But  it  must  be  conceded  to  the  remark 
of  Sir  W.  Grant,  in  Smith  v.  Campbell,(d)  that  the  facts  of  the  case 
did  not  require  a  decision  upon  such  a  question,  as  the  testator's 
nearest  relations  were  nephews  and  nieces,  and  only  next  of  his  kin  ; 
so  that  "  Lord  Hardwicke  (as  his  Honour  justly  observed)  had  no 
occasion  to  consider  whether  supposing  the  next  of  kin  had  compri- 
sed a  larger  description  of  relations,  he  would  have  let  in  all  the 
persons  who  would  have  been  entitled  in  the  event  of  intestacy, 
though  not  answering  the  description  of  nearest  relations." 

When  the  terms  of  bequest  are  not  confined  to  "  nearest  relation," 
but  require  the  legatee  to  be  of  the  "  name"  of  a  family  as  thus  : 
"  to  my  nearest  relation  of  the  name  of  the  Rowes ;"  .the  relatives 
must  not  only  be  nearest  in  degree,  but  must  be  of  the  stock  of  the 
Rowes,  and  entitled  to  the  name  as  branches  of  the  family.  Yet,  if 
the  person  answering  the  description  of  nearest  relation  were  a 
female,  and  originally  bore  the  family  name  of  Rowe,  which,  at  the 
testator's  death,  or  other  period  of  the  legacy  taking  effect,  happen- 
ed to  be  lost  in  consequence  of  marriage;  that  nominal  alteration 
will  not  exclude  her  from  the  bequest,  because  the  testator,  in  adopt- 
ing the  word  "  name,"  intended  to  express  that  his  nearest  relation, 
being  of  the  stock  or  family  of  the  Rowes,  and  entitled  to  the  appel- 
lation of  Rowe  by  birth,  should  have  the  benefit  of  the  legacy. 
There  is  no  condition  requiring  the  legatee  to  be  of  that  name  when 
the  disposition  is  to  take  effect;  consequently,  as  the  female  rela- 
tive is  the  nearest  of  kin,  and  originally  entitled  to,  and  before  mar- 
riage called  by  the  name  of  Rowe,  her  title  to  the  legacy  is  complete. 
As  an  authority  for  this : 

In  Pyot  v.  Pyot,(e)  Lady  Withringham  devised  her  real  and 
personal  estates  to  trustees,  for  her  daughter  Mary  in  fee ;  but  if  she 
died  before  twenty-one  or  marriage,  the  trustees  were  directed  to 
convey  and  assign  those  estates  to  the  testatrix's  "  nearest  relation 
of  the  name  of  the  Pyots"  absolutely.  The  contingency  happened, 
and  at  that  time,  as  also  at  the  death  of  the  testatrix,  her  nearest  of 
kin  consisted  of  four  individuals,  viz.  a  man  and  two  unmarried  sis- 
ters of  the  name  of  Pyot,  and  another  sister  who  was  married  at  the 

( b)  1  Ves.  sen.  337.  (c)  Ambl.  70.  (d)  19  Ves.  403. 

(0  1  Ves.  sen.  336.  and  see  Mayott  v.  Mayotf,  2  Bro.  C.  C.  125.  ed.  by  Belt. 


SECT.  V.]  Description  of  Legatees.  103 

date  of  the  will,  and  who  was  originally  of  that  name,  but  which  she 
had  lost  by  such  marriage.  There  was  also  another  person  of  the 
name  ofPyot  when  the  contingency  happened,  but  not  so  nearly  re- 
lated to  the  testatrix  as  the  persons  before  mentioned.  Who  were 
entitled  to  the  real  and  personal  estates,  was  the  question.  And 
Lord  Hardwicke determined  three  points;  l.That  "relation"  being 
a  noun  of  multitude,  was  synonimous  with  the  word  "  kindred,"  and 
comprehended  all  the  nearest  relations  of  the  testatrix  in  equal  de- 
gree. 2.  That  the  person  not  so  nearly  allied  to  the  testatrix  as  the 
brother  and  sisters  already  mentioned,  was  excluded.  And  3,  that 
the  married  sister,  being  of  the  stock  and  family  of  the  Pyots,  and 
one  of  her  nearest  of  kin,  and  originally  bearing  the  family  name, 
was  entitled  to  participate  in  the  fruits  of  the  devise;  his  Lordship 
considering  the  word  "  name,"  &c.  equivalent  to  the  expression  "  of 
the  stock  of  the  Pyots,"  a  description  which  was  answered  by  the 
married  daughter. 

The  propriety  of  the  last  determination  seems  to  be  obvious ;  for 
if  the  mere  circumstance  of  bearing  the  nameofPyot,  united  to  the 
character  of  nearest  relation  of  the  testatrix  had  been  considered 
sufficient  within  the  terms  of  the  devise,  without  regard  to  that  re- 
lation being  of  the  stock  of  the  Pyots;  the  necessary  consequence 
would  be,  that  a  nearer  relation  of  the  testatrix  than  the  brother 
and  sisters  of  that  family  might  totally  exclude  them,  by  the  mere 
assumption  of  the  name  ofPyot,  by  Act  of  Parliament,  or  under  au- 
thority of  the  royal  license ;  a  result  clearly  in  opposition  to  the  in- 
tention of  the  testatrix.  That  intention  would  be  equally  defeated 
by  such  an  interpretation  of  the  word  "  name,"  if  there  were  a.  female 
nearer  of  kin  to  the  testatrix  than  the  stock  of  the  Pyots,  and  she 
married  a  stranger  of  the  name  ofPyot;  by  that  act  she  would  lite- 
rally answer  the  description  in  the  will,  and  exclude  all  of  that 
family,  contrary  to  the  meaning  of  the  testatrix. 

It  seems,  however,  to  be  settled  upon  sound  reason,  that  where 
a  testator,  after  prior  dispositions,  ultimately  bequeathes  his  property 
to  relations,  or  nearest  relations  of  his  oivn  name,  those  only  will 
answer  the  description  who  are  of  his  own  family,  and  entitled  to 
bear  his  name ;  and  that  his  nearest  relations,  or  relations  if  not  of 
his  name,  as  just  explained,  cannot,  by  legally  assuming  his  name, 
by  Act  of  Parliament  or  otherwise,  bring  themselves  within  the  true 
description  in  the  will.(/) 

Sometimes  it  occurs  that  a  testator  requires  the  person  to  succeed 
to  his  real  property,  at  the  conclusion  of  prior  dispositions  of  it,  not 
only  to  be  the  nearest  relation  of  his  own  name,  but  also  of  his  own 
blood.  The  senses  to  be  imputed  to  these  two  words  in  conjunction, 
so  as  to  affix  a  meaning  to  each,  seem  to  be  these :  the  word  "  blood" 
is  to  be  considered  as  marking  the  stock,  and  confining  it  to  the 
testator's  own  family ;  and  the  word  "  name"  as  limiting  the  objects 
of  that  stock  to  those  deducing  their  title  from  the  male  line,  thereby 
excluding  any  of  that  stock  or  family  claiming  to  be  of  kin  to  the 
testator  by  descent  from  a.female.(g)  Hence  it  appears  that  the  ap- 
plication and  sense  of  the  word  "  name"  are  qualified  by  its  connec- 

See  Barlow  v.  Bateman,  4  Bro.  Parl.  ca.  194.  and  the  case  next  stated. 
15  Ves.  107. 


104  Description  of  Legatees.  [Cn.  II. 

lion  with  the  word  "  blood,"  so  as  to  give  to  each  of  those  terms  a 
separate  meaning  and  effect. 

The  subjects  now  under  consideration  were  fully  discussed  in  the 
important  case  of  Leigh  v.  Leigh;(h]  Lord  Leigh  having  two  sisters, 
the  one  single  and  the  other  married,  devised  his  real  estate  to  his 
sister,  Mary  Leigh,  for  life,  remainder  to  her  first  and  other  sons  in 
tail  male ;  remainder  to  her  daughters  in  tail  general,  as  tenants  in 
common ;  remainder  to  his  sister,  Jinn  Hachet,  for  life ;  remainder 
to  her  first  and  other  sons  in  tail,  with  the  following  limitation  over  : 
"  to  the  first  and  nearest  of  my  kindred  (the  same  in  effect  as  rela- 
tions} being  male  and  of  my  name  and  blood,  who  shall  be  living  at 
the  determination  of  the  aforesaid  several  estates,  and  to  the  heirs  of 
his  body."  Both  sisters  died  without  issue,  and  Mary  was  the  sur- 
vivor; at  whose  death  the  plaintiff  stated  that  he  was  the  first  and 
nearest  of  kin  to  the  testator,  being  a  male,  but  was  not  originally  of 
the  testator's  name,  although  he  assumed  it  by  the  King's  license. 
The  question  upon  demurrer  was,  whether,  under  these  circum- 
stances, the  plaintiff  answered  the  description  in  the  will?  And  the 
Court,  consisting  of  Lord  Eldon,  Thompson,  B.  and  Lawrence,  J.  de- 
termined in  the  negative,  for  the  following  reasons : 

1.  It  appearing  from  the  nature  and  tendency  of  the  limitations  to 
the  sisters  and  their  issue,  which,  so  far  as  they  might  take  effect, 
would  necessarily  occasion  a  suspension  of  the  name  of  Leigh,  or  its 
disuse  for  ever,  should  the  remainder  over  be  barred  by  any  of  those 
to  whom  an  estate  tail  was  limited ;  and  also  from  the  circumstance  of 
the  testator's  having  made  no  provision  requiring  the  persons  taking 
under  those  limitations,  on  their  respectively  succeeding  to  the  pro- 
perty, to  assume  his  name,  that  he  had  shown  no  anxiety  for  its  con- 
tinuance, the  testator  could  not,  as  the  Court  considered,  mean  the 
word  "  name"  to  be  confined  to  the  simple  requisition  that  his  in- 
tended devisee,  under  the  subsequent  limitation,  (possessing  the 
other  qualifications)  should  be  of  his  name  by  mere  assumption,  but 
that  he  intended  to  describe  by  the  term,  in  conjunction  with  the 
rest  of  the  description,  an  individual  who  should  be  his  first  and 
nearest  relation  of  the  male  line,  bearing  the  name  of  Leigh  by  in- 
heritance  at  the  time  when  the  previous  limitations  determined. 
2.  That  the  plaintiff  not  being  so  entitled  to  the  name,  did  not 
answer  the  whole  description  in  the  will,  a  defect  which  could  not 
be  cured  by  assuming  the  family  name  by  royal  authority,  and  con- 
sequently he  could  not  succeed  in  his  claim. 

Under  the  last  division  of  the  present  section  we  proceed  to 
observe : 

4,  That  the  word  "  relations"  being  governed  by  the  Statute  of 
Distributions,  no  persons  can  regularly  answer  the  description  but 
those  who  are  of  kin  to  the  testator  by  blood,  consequently  relatives 
by  marriage,  are  not  included  in  a  bequest  "  to  relations"  generally. 
The  reason  is  this ;  the  term  "  relations"  is  synonimous  with  "  kin- 
dred" mentioned  in  the  statute,  a  word  meaning  individuals  of  the 
same  family  and  kind  with  the  testator.  A  wife,  therefore,  cannot 
regularly  claim  under  a  bequest  to  her  husband's  relations,  nor  a 
husband  as  relation  to  his  wife ;  for  although  there  be  a  relation  be-> 

(A)  15  Ves,  9?, 


SECT.  V«3  Description  of  Legatees.  105 

tween  husband  and  wife,  it  is  not  of  that  description  which  falls 
within  the  meaning  of  the  Statute  of  Distributions. (i)  Such  is  the 
rule  when  nothing  appears  from  the  context  of  the  will  explanatory 
of  the  sense  in  which  a  testator  used  the  word.  It  must,  therefore, 
receive  additional  power  to  exclude  relations  by  marriage,  when 
aided  by  the  inference  arising  from  those  relatives  being  provided 
for  by  the  testator,  and  the  distribution  of  the  property  is  deferred 
till  their  deaths. 

Accordingly,  in  Davies  v.  Baity, (k)  the  testator  gave  the  interest 
of  his  residuary  personal  estate  to  his  wife  for  life,  and  the  capital 
at  her  decease  "  to  such  of  his  relations"  as  would  be  entitled  to  it 
by  the  Statute  of  Distributions.  Lord  Hardwicke  determined  upon 
the  intention  appearing  in  the  will  confirmatory  of  the  general  rule, 
that  the  executor  of  the  widow  was  not  entitled  to  any  share  of  the 
principal  residue. 

In  Worseley  v.  Johnson,(l)  his  Lordship  made  the  like  decree 
under  similar  circumstances.  The  testator  devised  certain  lands,  of 
which  he  was  seised  in  fee,  to  his  wife  for  life,  remainder  to  his  kins- 
man, Ralph  Buckwell,  in  tail,  with  remainder  to  be  sold,  and  the 
proceeds  to  be  divided  among  his  relations,  according  to  the  statute. 
The  question  was,  whether  the  wife's  executor  was  entitled  to  com- 
pel a  sale  of  the  lands,  and  to  receive  a  proportion  of  the  produce 
with  the  testator's  next  of  kin  *?  And  the  decision  was  in  the  nega- 
tive. 

Whether  Lord  Rosstyn's  determination  in  Maitland  v.  ddair,(m) 
is  to  be  relied  upon  may  possibly  admit  of  doubt.  There  the  tes- 
tator, after  giving  a  number  of  legacies,  and  most  of  them  to  rela- 
tions, viz.  a  brother,  sisters,  nephews,  nieces,  and  their  children,  and 
500Z.  to  his  brother-in-law,  made  the  following  disposition  by  a  co- 
dicil :  "  My  will  is,  that  whatever  money,  over  and  above  what  I  have 
already  bequeathed,  I  may  be  possessed  of  at  my  death,  may  be  di- 
vided among  my  said  relations  by  my  executors,  in  the  proportion 
I  have  bequeathed  the  other  part  of  my  fortune."  His  Lordship  ex- 
cluded the  brother-in-law  from  a  share  of  the  residue,  applying  to 
the  case  the  general  rule  before  mentioned. 

It  may  probably  be  thought  that  the  last  decision  militates  against 
the  testator's  intention  as  expressed  in  his  will.  Before  disposing 
of  the  residue  he  had  given  a  legacy  to  his  brother-in-law,  and  class- 
ed him  among  his  own  kindred.  When  then  in  disposing  of  his 
residuary  estate,  the  testator  directed  it  to  be  divided  among  his  said 
relations,  and  proceeded  to  order  its  distribution  among  them  in  the 
proportions  he  had  before  given  the  other  part  of  his  fortune,  it 
seems  difficult  to  conceive  upon  what  principle  the  brother-in-law 
was  excluded,  or  how,  upon  such  a  construction,  the  residue  could, 
consistently  with  the  intention  expressed  in  the  will  be  divided  in 
the  proportions  the  testator  had  bequeathed  the  other  part  of  his 
property,  part  of  that  other  property  having  been  expressly  given  to 
his  brother-in-law. (n) 

The  term  "  relations,"  being  synonimous  with  "  next  of  kin,"  a 

(i)  1  Ves.  sen.  84.     3  Atk.  761.     1  Bro.  C.  C.  31.  294.  ed.by  Belt.  3  Ves.  232. 
f  £)  1  Ves.  sen.  84.  (/)  3  Atk.  758.  (m)  3  Ves.  231. 

(n)  See  Lord  Eldon's  observations,  14  Ves.  382. 
VOL.  I.  O 


106  Description  of  Legatees.  [Cn.  II. 

description  of  legatees  which  will  be  the  next  subject  of  considera- 
tion ;  several  of  the  distinctions  and  observations  appearing  under 
the  latter  title  seem  applicable  to  the  one  we  are  just  leaving ;  to 
which  the  readers  attention  is  accordingly  directed. 

VI.  Legacies  to  ((  NEXT  OF  KIN." 

1.  In  common  acceptation  the  being  of  a  man's  kindred  is  being 
of  his  blood,  in  which  sense  the  word  "  kindred"  is  used  in  the  Sta- 
tute of  Distributions.     So  that  when  a  man  bequeaths  "  to  his  own 
next  of  kin  as  if  he  had  died  intestate,"  he  is  understood  to  refer  to 
such  persons  as  are  related  to  him  by  blood,  and  within  the  degree 
mentioned  in  the  statute.     But  it  is  not  necessary  that  next  of  kin 
should  be  of  the  whole  blood,  for  that  is  only  required  in  deducing 
titles  to  freehold  estates  upon  feudal  principles ;   the  half-blood 
therefore  answering  the  description  of  next  of  kin,  are  equally  en- 
titled with  the  whole,  and  if  nearer  in  degree  will  exclude  the  whole 
blood. (o) 

2.  It  follows  from  these  observations,  that  relations  by  marriage 
are  in  general  excluded  from  participating  in  a  legacy  given  to  next 
of  kin ;  and  that  neither  a  husband  nor  wife  answers  the  description 
required  in  a  bequest  to  the  next  of  kin  of  either  of  them.     This  was; 
so  determined  in  Nichols  v.  Savage,(p)  and  Garrick  v.  Lord  Cam- 
den,(q)  upon  testamentary  dispositions ;  and  in   Watt  v.  Watt,(r) 
and  Bailey  v.  Wright, (s)  where  the  limitations  to  next  of  kin  were 
contained  in  settlements. 

But  this  is  only  a  primd  facie  construction  which  may  be  repelled 
by  the  contrary  intention  of  a  testator :  accordingly  Lord  Eldon 
said  in  Garrick  v.  Lord  Camden,  "it  was  competent  to  and  required 
from  the  Court  to  look  through  the  whole  will,  and  to  see  whether 
from  the  whole,  an  intention  was  manifested  to  include  the  wife 
among  those  who  were  to  be  taken  more  strictly  as  next  of  kin,  a 
description  primdfacie  excluding  her."  His  Lordship  then  proceed- 
ed to  remark,  that  the  words  "  to  be  divided  as  if  I  had  died  intes- 
tate," (omitting  the  words  next  of  kin)  might  upon  the  whole  admit 
or  even  authorize  or  require  such  a  construction  as  to  let  in  the 
widow. (t)  Hence  it  follows  that  the  same  words  in  the  wife's  will, 
made  under  a  power  of  similar  words  in  a  bequest  to  her,  must  also 
entitle  the  husband  to  a  share .(w) 

3.  It  may  be  considered  settled,  that  a  testator  is  to  be  under- 
stood to  mean  by  the  expression  "  next  of  kin,"  when  he  does  not 
refer  to  the  statute,  or  to  a  distribution  of  the  property  as  if  he  had 
died  intestate,  those  persons  only  who  should  be  nearest  of  kin  to 
him,  to  the  exclusion  of  others  who  might  happen  to  be  within  the 
degree  limited  by  the  statute.     It  is  true  that  Phillips  v.  Garth,(x) 
determined  by  Bulkr,  J;   is  a  decision  in  favour  of  all  the  next  of 
kin,  upon  the  principle  that  the  words  "  next  of  kin"  had  received 
a  technical  signification  by  reference  to  the  statute;  so  that  every 
testator  using  them,  must  be  understood  to  do  so  in  the  sense  they 

fo)  1  Ventr.  425.  Alleyn,  36.  Styl.  74.  Mascall's  Digest,  61,  a  very  useful 
little  work,  (fi)  Cited  18  Ves.  53.  (?)  14  Ves.  376,  381,  386.  (r)  3  Ves.  244. 

(0  I8  Ves-  49-  (0  14  Ves.  382. 

(u)  See  more  fully  upon  these  subjects,  the  law  of  "  Husband  and  Wife,"  1  Vol. 
327,  2  Vol.  63.  (x}  3  Bro.  C.  C.  64 


SECT.  VI.]  Description  of  Legatees.  107 

are  used  in  a  case  of  intestacy;  but  its  authority  was  materially 
shaken  by  Lord  Thurlow,  before  whom  it  was  afterwards  brought,(y) 
by  Sir  W.  Grant  in  Smith  v.  Campbell,(z) .  and  by  Lord  Eldon 
in  Garrick  v.  Lord  Camden,(a)  and  the  decision  by  Sir  Thomas 
Plumer  in  Brandon  v.  Brandon,  after  noticed,  appears  to  have 
over-ruled  it. 

The  bequest  in  Phillips  v.  Garth,  was  of  a  residue  to  the  tes- 
tator's executors  "  to  be  equally  divided  by  them  among  his  next  of 
kin,  share  and  share  alike."  His  nephews  and  nieces  claimed  the 
same  shares  per  capita,  with  his  surviving  brothers ;  and  the  decree 
was  in  their  favour  upon  the  principle  before  mentioned. 

Sir  W.  Grant,  in  allusion  to  the  last  case,  and  on  the  present 
subject  expressed  himself  to  the  following  effect,  in  pronouncing 
judgment  in  the  case  of  Smith  v.  Campbell.  "  Even  if  the  words 
were  next  of  kin,  yet  if  there  was  nothing  to  show,  that  the  testator 
had  reference  to  the  Statute  of  Distributions,  or  to  a  division  as  in 
the  case  of  intestacy,  the  inclination  of  my  opinion  would  be,  that 
the  nearest  in  kindred  only  are  entitled ;  and  that  brothers  and 
sisters  would  exclude  nephews  and  nieces  from  participating  in  such 
a  bequest.  I  know  the  contrary  was  determined  by  Buller,  J.  in 
Phillips  v.  Garth,  a  case  which  afterwards  came  before  Lord  Thur- 
low, but  not  upon  that  point;  yet  the  inclination  of  his  Lordship's 
opinion  was  so  strong  against  that  of  Mr.  Justice  Buller,  as  to  in- 
duce him  to  direct  the  cause  to  stand  over  in  order  that  the  brothers 
might  have  an  opportunity  of  applying  to  re-hear  the  cause,  but 
which  was  compromised.  So  in  the  case  of  Garrick  v.  Lord  Cam- 
den,  the  Chancellor  referring  to  Lord  Thurlow's  doubt,  states  his 
own  also  with  regard  to  that  decision  of  Mr.  Justice  Buller." 

This  is  a  strong  opinion  that  Phillips  v.  Garth,  is  erroneously  de- 
cided ;  an  opinion  which  was  acted  upon  by  Sir  Thomas  Plumer  in 
the  case  of  Brandon  v.  Brandon,(b)  before  referred  to ;  and  in  which 
he  determined  that  a  surviving  brother  was  entitled  in  exclusion  of 
the  children  of  a  deceased  sister,  under  the  words  "  nearest  and 
next  of  kin." 

But  where  the  bequest  is  to  a  legatee  (who  happens  to  be  nearest 
of  kin  to  the  testatrix)  for  life,  and  after  his  death,  to  the  testatrix's 
next  of  kin,  to  be  a  vested  interest  in  them  at  her  death,  the  legatee 
for  life,  though  nearest  of  kin,  will  be  excluded,  and  the  pefsons, 
next  in  degree,  entitled. 

Thus  in  the  recent  case  of  Bird  v.  JVood,(c)  the  bequest  was  of 
certain  funds  to  trustees  in  trust  to  pay  the  interest  to  the  testatrix's 
daughter  for  her  separate  use  for  life;  and  after  her  decease,  to  the 
daughter's  appointment  by  deed  or  will ;  and  in  default  of  appoint- 
ment, for  the  testatrix's  next  of  kin,  to  be  considered  a  vested  inte- 
rest from  the  testatrix's  death  except  as  to  any  child  that  might  be 
afterwards  born  of  her  daughter.  The  daughter  died  without  any 
child,  and  without  executing  any  appointment.  Her  husband  took 
out  administration  to  her,  and  claimed  the  fund  :  but  Sir  John  Leach, 
V.  C.  held,  that  the  persons  who,  at  the  testatrix's  death,  would  have 

(y)  3  Bro.  C.  C.  69.  (z)  19  Ves.  404. 

•  (a)  14  Ves.  335.  (6)  2  Wils.  C.  C.  14.  (c)  2  Sim,  &  Stu.  400. 


108  Description  of  Legatees.  [Cn.  II. 

been  her  next  of  kin,  if  her  daughter  had  been  then  dead  without 
children,  were  clearly  intended.  That  the  daughter  could  not  be 
such  next  of  kin;  for.  the  persons  intended  were  to  take  at  her  death; 
and  must  have  been  living  at  the  death  of  the  testatrix ;  for  their 
interests  were  then  to  be  vested. 

4.  If  a  bequest  to  next  of  kin  generally  will  entitle  those  only 
who  are  nearest  relations  in  exclusion  of  others  who  are  next  of  kin 
in  the  sense  of  the  Statute  of  Distributions,  it  follows  that  nearest 
of  kin  will  alone  be  entitled  under  a  bequest  to  "  next  of  kin  in 
equal  degree" 

Thus  in  Wimbles  v.  Pitcher,(d)  the  testator  gave  part  of  his  real 
estate  to  his  two  nieces,  one  of  them  being  the  daughter  of  a  sur- 
viving brother.  He  then  bequeathed  legacies  to  his  brothers  and 
their  children,  and  to  other  nephews  and  neices,  and  the  residue 
"  to  his  next  of  kin  in  equal  degree,  share  and  share  alike."  Sir 
W.  Grant  held,  that  the  surviving  brothers  were  alone  entitled ; 
nephews  and  nieces  not  being  in  equal  degree  with  them,  and 
therefore  not  answering  the  description. 

So  also  "in  an  Anonymous  case,(c)  Sir  Thomas  Plumer  made  a 
similar  decree  upon  words  of  like  import. 

The  subject  next  proposed  is ; — 

SECT.  VII.     Legacies  to  "  LEGAL  PERSONAL  REPRESENTA- 
TIVES," or  ((  PERSONAL  REPRESENTATIVES." 

The  legal  construction  of  the  words  "  personal  representatives" 
or  "  legal  personal  representatives"  is  the  executors  or  adminis- 
trators of  the  person  described.(/)  Consequently,  if  a  legacy  were 
given  to  A.  and  his  personal,  or  legal  personal,  representatives,  the 
absolute  interest  must  vest  in  A.  But  if  no  bequest  be  made  to  A: 
and  the  limitation  be  to  the  personal,  or  legal  personal,  representa- 
tives of  A.  unexplained  by  any  thing  in  the  will,  As  executors  or 
administrators  would  be  entitled  to  it,  not  as  representing  A.  or  as 
part  of  his  estate,  or  liable  to  his  debts,  but  in  their  own  rights  as 
persona  designate  by  the  law.(g)  This  legal  construction  and  ap- 
pointment only  take  place  when  testators  have  not  manifested  any 
intention  in  their  wills  to  the  contrary ;  for  if  it  appear  from  the  dis- 
positions in  the  instrument,  whether  it  be  a  deed  or  will,  that  those 
words  were  used  in  reference  to  other  persons  than  executors  or 
administrators,  that  intention  will  prevail.  We  shall  consider, — 

1.  Where  the  executors  or  administrators  as  personal,  or  legal 
personal,  representatives,  are  entitled. 

In  Evans  v.  Charles,  under  a  bequest  to  the  personal  represen- 
tatives of  a  person  then  dead,  the  Court  of  Exchequer,  at  the  head 
of  which  vf&sEyre,  Ch.  B.  gave  the  property  to  the  administratrix. 
The  case  seems  to  have  been  maturely  considered,  and  must  be  held 
in  great  credit  from  his  Lordship's  acknowledged  learning  and 
talents.  In  Long  v.  Blackall,(h)  Lord  Rosslyn  approved  of  it,  ob- 
serving that  the  words  were  to  be  explained  according  to  the  sub- 
ject matter. 

(d)  12  Ves.  433.  (e)  i  Mad.  36. 

m  5  Ves.  402.  Price  v.  Strange,  6  Mad.  159.        (  P-)  See  2  Mad.  155. 

(A)  3  Ves.  486. 


SECT.  VII.]  Description  of  Legatees.  109 

In  the  case  just  noticed  of  Evans  v«.  Charks,(i)  it  appears  that 
Mice  Heath,  as  executrix  and  residuary  legatee  of  her  brother  John, 
became  a  creditor  of  Charles  Floyer,  who  after  John's  death  com- 
pounded with  Alice  and  the  other  creditors  for  ten  shillings  in  the 
pound  in  full  of  their  demands.  Alice  died  before  receipt  of  the  com- 
position, having  by  will  bequeathed  her  residuary  estate  among  some 
of  her  relations,  and  appointed  two  executors,  who  died  before  Floy- 
er ;  and  the  plaintiff,  Mrs.  Evans,  was  the  legal  personal  represen- 
tative of  the  surviving  executor,  as  also  of  Alice  Heath.  Floyer  be- 
ing dead,  his  widow,  Blanch,  after  the  death  of  Mice,  charged  her 
property  by  will  with  the  remaining  ten  shillings  in  the  pound  of 
her  husband's  debts  which  had  been  compounded  for,  directing  the 
money  to  be  paid  to  those  creditors,  "  or  their  personal  representa- 
tives." Of  the  share  of  this  bequest  coming  to  Alice  Heath  there 
were  four  sets  of  claimants  :  1,  the  plaintiff  Evans,  as  her  administra- 
tratrix ;  2,  her  residuary  legatees ;  3,  her  next  of  kin  at  her  death,  or  their 
representatives  ;  and,  4,  her  next  of  kin  living  at  the  death  of  Blanch 
Floyer.  The  Court  disposed  of  these  claims  as  follows  : — First,  that 
the  plaintiff,  as  administratrix  of  Alice,  was  legally  and  beneficially 
entitled,  unless  any  otlrer  person  could  show  a  better  right.  Second- 
ly, that  Alice's  residuary  legatees  failed  in  doing  so,  because  the 
fund  was  neither  Alice's  at  the  date  of  her  will,  nor  at  her  death  ; 
so,  it  never  constituting  part  of  her  estate,  could  not  have  passed  as 
such,  if  it  had  been  expressly  bequeathed  to  them,  for  want  of  in- 
terest in  Alice  ;  consequently  since  her  residury  legatees  could  not 
have  taken  the  money  by  direct  bequest,  much  less  could  they  do 
so  upon  the  basis  of  an  implied  trust  affecting  the  conscience  of  the 
plaintiff.  And,  thirdly  and  fourthly,  that  neither  class  of  next  of  kin 
could  make  out  a  good  title  against  the  plaintiff,  as  that  could  only 
be  effected  by  converting  her  into  a  trustee  for  them  ;  a  con  version 
impracticable  in  the  present  case  ;  because  the  money  formed  no 
part  of  Alice's  estate  at  her  death  ;  for  in  order  to  raise  such  a  trust 
there  must  be  property  belonging  to  a  testator  at  the  time  of  his 
decease  ;  but  in  this  instance,  there  was  no  such  property  belong- 
ing to  Alice  at  her  death  upon  which  to  found  a  constructive  trust 
for  her  next  of  kin.  It  followed,  therefore,  and  was  determined, 
that  the  plaintiff,  the  legal  representative  of  Alice,  was  the  only  per- 
son who  could  make  a  title  to  the  legacy. 

The  last  case  is  an  express  decision,  that  where  executors  or  ad- 
ministrators are  entitled  under  a  bequest  "  to  the  personal  repre- 
sentatives" of  a  third  person,  they  take  the  property  by  the  descrip- 
tion aspersonee  designate,  beneficially,  and  not  as  part  of  the  estate 
of  the  testator. 

And  it  must  be  remarked,  that  the  subject  matter  in  the  preced- 
ing case  was  one  among  many  sums  of  money  bequeathed  by  Blanch 
Floyer  to  satisfy  in  full  debts  of  her  late  husband,  which  had  been 
compounded.  The  motive  for  the  bequest  therefore  afforded  no  in- 
ference that  Blanch,  in  using  the  words  "  personal  representatives" 
of  those  creditors,  meant  any  other  than  those  answering  the  legal 
decription,  viz.  their  executors  or  administrators.  There  was,  there- 
fore, no  ground  upon  which  the  Court  of  Exchequer  could  transfer 

(t)  Anstr.  128. 


110  Description  of  Legatees.  [Cn.  II. 

the  legal  right  of  Mrs.  Evans  to  >any  other  person  ;  and  it  would 
seem  that  Lord  Rosslyn  referred  to  this  circumstance,  when  he 
observed,  that  the  words  "  personal  representatives"  were  to  be  ex- 
plained according  -to  the  subject  matter ;  upon  the  strength  of  which 
he  reconciled  the  present  case  with  that  of  Bridge  v.  Abbot,  after 
stated. 

The  construction  which  entitles  executors  or  administrators  merely 
because  they  answer  the  description  of  "  personal  representatives" 
in  a  legal  sense,  is  discountenanced,  as  seldom,  if  ever,  according 
with  the  intention  of  the  testators.  It  is,  therefore,  only  adopted 
from  necessity,  which  appears  from  the  case  of  Evans  y.  Charles, 
last  stated  j  consequently,  a  court  of  equity  will  lay  hold  of  any  cir- 
cumstances to  displace  the  legal  title,  and  give  the  property  to  the 
next  of  kin  of  the  person  described,  upon  the  principle  that  the 
intention  of  a  testator  is  more  likely  to  be  executed  in  imputing  his 
sense  of  ''  personal  representatives"  to  be  descriptive  of  next  of  kin, 
than  of  mere  executors  or  administrators.  We  shall  therefore  pro- 
ceed to  consider, — 

2.  When  next  of  kin,  and  not  executors  or  administrators,  will  be 
entitled  under  the  description  of  "  personal  representatives,"  or 
"  legal  personal  representatives. 

It  is  settled,  that  if  an  inference  can  be  drawn  from  a  will  that  a 
testator  used  the  words  "  personal,  or  legafcpersonal,  representa- 
tives" to  designate  individuals  answering  the  description,  though 
not  in  the  legal  sense  of  the  terms,  those  persons  will  be  entitled  in 
preference  to  executors  or  administrators. 

Thus  in  Bridge  v.  Abbot,(k}  Mary  King  bequeathed  the  residue 
of  her  estate  to  several  persons  equally ;  but  if  any  of  them  died  be- 
fore her,  she  directed  that  the  share  or  shares  of  him,  her  or  them 
so  dying  should  belong  to  his,  her  or  their  "  legal  representatives," 
and  appointed  Abbott  and  Webb  executors.  One  of  the  questions 
was,  who  were  entitled  to  the  share  of  John  Webb,  a  residuary  lega- 
tee that  died  before  the  testatrix,  the  claimants  being  the  executors, 
the  residuary  legatees,  and  the  next  of  kin  of  John  Webb  9  And 
Lord  tflvanley  determined  in  favour  of  the  next  kin  of  John,  liv* 
ing  at  the  death  gf  the  testatrix. 

In  order  to  reconcile  that  decision  with  the  case  of  Evans  v. 
Charles,  before  stated,  it  must  be  ascribed  to  some  such  impression 
as  the  following  :  that  the  testatrix  being  anxious  to  prevent  a  lapse 
by  the  death  of  any  of  her  residuary  legatees  before  herself,  and  that 
the  legacies  should  at  all  events  go  to  their  respective/amides,  could 
not  mean  by  the  term  "  personal  representatives,"  executors  or  ad- 
ministrators of  legatees  so  happening  to  die,  persons  casually  repre- 
senting them,  but  their  next  of  kin  under  the  Statute  of  Distribu- 
tions. The  Court  of  Exchequer,  in  the  subsequent  case  ef  Evans  v. 
Charles,  (in  which  the  present  was  maturely  considered)  did  not  dis- 
pute the  correctness  of  his  Lordship's  decision,  but  attributed  it  to 
his  conviction  (for  the  above  reason  as  is  presumed)  that  the  tes- 
tatrix intended  by  the  words  "  personal  representatives,"  the  in- 
dividuals answering  that  description  under  the  statute,  (that  is)  per- 

(*)  3  Bro.  C.  C,  224.  approved  by  Lord  Rosslyn  in  Long  v.  Btackall,  3  Ves.  486. 


SECT.  VII.]  Description  of  Legatees.  Ill 

sons  substituted  in  the  place  of  others  deceased;  a  construction  that 
could  not  be  resorted  to  in  Evans  v.  Charles,  since  the  next  of  kin 
were  collaterals,  and  not  claiming  by  substitution  or  representation. 
In  Holloway  v.  Holloway,(l)  Lord  Alvanley  adverted  to  those  two 
cases,  both  of  which  he  considered  to  have  been  properly  determin- 
ed ;  observing  on  the  same  occasion,  that  the  words  "  personal  re- 
presentatives," must  have  their  legal  meaning,  (which  is  executors 
or  administrators)  unless  clearly  intended  otherwise. 

The  following  case  differs  from  the  last  two  authorities,  in  ex- 
pressly referring  to  the  Statute  of  Distributions,  by  adding  to  the 
words  "  personal  representatives,"  the  words  "  according  to  the 
course  of  administration,'1''  thereby  pointing  to  the  individuals  en- 
titled under  that  statute,  to  have  the  fund  divided  among  them  in 
the  event  of  intestacy  ;  a  description,  which  it  is  presumed,  would 
'.have  been  sufficient  to  explain  the  words  "  personal  representa- 
tives" to  mean  next  of  kin,(w)  had  not  the  Court  determined  in  their 
favour  upon  other  circumstances  of  intention  appearing  in  the  will. 

The  case  alluded  to,  is  Jennings  v.  Gallimore,(n)  in  which  the  tes- 
tator, Ambrose  Gallimore,  was  empowered  by  settlement,  in  events 
which  happened,  to  appoint  1000Z.  by  deed  or  will ;  accordingly  by 
his  will,  after  reciting  his  power,  he  directed  his  trustees  to  pay  the 
money  "  to  his  legal  representatives  according  to  the  course  of  ad- 
ministration," in  case  his  daughter  Dorothy  Turner  should  die  with- 
out issue,  a  contingency  which  took  place.  Ambrose  appointed  two 
executors,  one  of  whom  was  his  nephew  William,  who  was  also  his 
sole  residuary  legatee.  William  became  a  bankrupt,  and  his  assig- 
nees claimed  the  money,  or  part  of  it,  contending  that  the  words 
"  legal  representatives"  were  to  be  construed  executors  of  Ambrose. 
But  Lord  Alvanley  was  of  opinion,  that  the  next  of  kin  were  entitled 
upon  the  principle  that  Ambrose,  if  he  had  not  intended  by  the  ex- 
pression "  legal  representatives"  other  persons  than  his  executors, 
would  never  have  shown  so  much  anxiety  to  execute  his  power,  and 
dispose  of  the  1000Z.  to  persons  by  a  description  different  from  that 
by  which  he  bequeathed  his  own  property ;  for  it  was  to  be  supposed, 
that  as  the  testator  had  given  his  own  estate  to  his  executor  William, 
nominatim,  he  would  have  appointed  to  him  the  1000Z.  by  the  same 
name,  if  William  ha.d  been  intended  to  take  that  sum. 

It  must  be  noticed,  that  Lord  Alvanley  gave  an  extra-judicial 
opinion,  that  if  the  question  had  arisen  upon  the  settlement  (as 
might  have  happened  if  Ambrose  had  died  intestate,  without  execut- 
ing his  power,  since  by  the  deed  the  money  was  limited  "  to  his 
legal  representatives,  according  to  the  course  of  administration,") 
Ambrose's  administrator  would  have  been  entitled  irf preference  to 
his  next  of  kin.  But  his  Lordship  entertaining  a  doubt  of  that 
opinion,  desired  to  be  understood  as  not  judicially  putting  any  con- 
struction upon  the  deed.  It  cannot,  however,  be  denied,  that  he 
thought  these  words  were  to  receive  different  constructions  when 
contained  in  a  deed,  and  when  in  a  will.  No  reason  is  given  for 
such  a  difference  ;  and  it  is  presumed,  that  where  the  intention  of 
parties  to  a  deed  is  clear  upon  the  face  of  it,  courts  of  law  and 
equity  will  carry  it  into  effect,  where  there  is  no  want  of  expres- 

(0  5  Ves.  402.  (m)  19  Ves.  404.  (n)  3  Ves.  146. 


112  Description  of  Legatees.  [€H.  II. 

sions;(o)  and  a  court  of  equity  will  even  correct  the  instrument,  if 
necessary,  to  give  effect  to  such  intention. (p)  If  then  the  words 
"  personal  representatives  in  the  course  of  administration,"  be  suffi- 
cient in  a  will  (as  before  supposed)  to  designate  relations  described 
in  the  Statute  of  Distributions,  there  seems  no  reason  why  the  same 
words  appearing  in  a  settlement,  should  not  receive  the  like  con- 
struction. 

Before  proceeding  to  the  consideration  of  the  next  authority,  it 
seems  expedient  to  remark  the  difference  when  the  bequest  is  to  the 
personal  representatives  of  a  stranger,  and  when  to  those  of  the  tes- 
tator himself,  as  in  the  foregoing  case.  In  the  first  instance,  we 
have  seen  that  the  persons  taking  under  the  description,  do  so  not 
only  as  persona  designates,  but  also  that  they  take  the  property  in 
their  own  rights,  discharged  from  the  debts,  &c.  of  their  testator. 
In  the  second,  however,  it  is  otherwise,  for  since  the  subject  be- 
queathed is  the  personal  estate  of  the  testator,  to  whose  own  per- 
sonal representatives  he  ultimately  limits  itr  it  follows  that  although 
the  persons  entitled  under  the  description,  whether  they  be  execu- 
tors, administrators,  or  next  of  kin,  may  succeed  to  the  property  as 
persona  designate,  they  nevertheless  hold  it  subject  to  all  the 
equities  which  it  was  liable  to  in  consequence  of  belonging  to  the 
individual  bequeathing  it.  After  these  observations,  we  shall  pro- 
ceed to  the  next  instance,  where  the  title  of  the  next  of  kin  was  pre- 
ferred to  that  of  an  executrix. 

In  Long  v.  Blackall,(q)  the  testator  bequeathed  leasehold  estates 
to  his  widow  durante  viduitate,  remainder  to  his  sons  in  succession, 
including  a  child  en  ventre  sa  mere,  if  a  son,  for  life,  remainder  to 
their  respective  issue  male,  or  descendants  from  issue  male.  And  if 
all  his  sons  died  without  leaving  issue  male  or  descendants  from  such 
issue,  remainder  upon  the  death  of  the  last  surviving  son  "  to  such 
persons  as  should  then  be  the  legal  representatives"  of  the  testator  ; 
and  he  appointed  his  wife  sole  executrix.  As  the  will  originally 
stood,  the  ultimate  limitation  was  in  trust  for  the  executors  and  ad- 
ministrators of  his  son  Thomas,  who  was  the  first  son  named  in  the 
will ;  but  those  words  had  been  erased  with  a  pen,  and  the  expres- 
sions, "  such  persons  as  shall  then  be  my  legal  representatives,"  were 
interlined.  It  was  one  of  the  questions  whether,  the  widow,  as  execu- 
trix, or  the  testator's  next  of  kin  were  entitled  to  the  leaseholds  ? 
And  Lord  Rosslyn  determined  in  favour  of  the  latter. 

It  is  very  improbable  that  the  testator  intended  his  wife  to  take 
under  the  limitation  to  his  legal  representatives,  njerely  on  account 
of  her  being  executrix,  because  having  named  her  in  the  commence- 
ment of  his  will,  it  might  have  been  expected  that  he  would  have 
bequeathed  to  her  the  property,  by  the  description  of  wife  or  of 
executrix,  had  he  meant  that  she  should  succeed  to  it.  And  it  is 
also  observable,  that  the  testator  had  appointed  a  period,  that  might 
have  been  very  distant,  for  his  legal  representatives  to  take  the 
property,  viz.  upon  the  death  of  his  sons,  without  leaving  issue  male, 
or  descendants  from  such  issue.  Whoever  then  answered  the  de- 
Co)  Touchst.  86.  et  seq.  4  Maule  &  Selw.  433,  1  Ves.  sen.  196.  18  Ves.  49. 
(/O  1  Ball  Sc  Beat,  253.  256.  260.  (y)  3  Ves.  486. 


SECT.  VII.]  Description  of  Legatees.  113 

scription  of  his  legal  representatives,  were  to  have  the  estates.  He 
could  not  therefore  mean  his  executrix  by  these  words,  a  person  who, 
upon  every  reasonable  calculation,  might  be  supposed  to  be  long 
previously  dead.  The  latter  was  the  ground  upon  which  the  Court 
founded  its  decree  in  favour  of  the  next  of  kin. 

The  last  case  seems  to  be  an  authority  for  considering  that  an 
executor  or  administrator  will  be  excluded  from  taking  beneficially, 
under  the  description  of  legal  representative,  personal  estate  ulti- 
mately limited  by  the  testator  to  his  legal  representatives  living  at 
the  failure  of  several  prior  dispositions  of  it;  and  upon  the  inference 
arising  from  the  distance  of  time  which  may  elapse  before  the  event 
happens,  that  the  testator  meant  by  those  words,  other  persons  than 
his  executor  or  administrator  strictly  answering  the  legal  description. 

We  have  seen  that  the  apparent  intention  of  the  testator  has  led 
to  the  construction  of  the  words  "  personal"  or  "  legal  personal  re- 
presentatives," in  favour  of  the  next  of  kin  in  preference  to  the  exe- 
cutors or  administrators.  We  proceed  to  observe, — 

3.  That  a  similar  reason  has  induced  the  Court  of  Chancery  to 
construe  the  same  words  to  mean,  children,  grand-children,  &c.  to 
the  exclusion  of  those  persons  who  technically  answer  the  descrip- 
tion of  "  personal  representatives." 

An  instance  of  this  kind  occurred  in  the  case  of  Horsepool  v.  Wat- 
son,(r)  in  which  a  fund  was  ordered  to  be  distributed  after  the  death 
of  the  survivor  of  two  parents  "among  all  their  issue,  child  or  chil- 
dren, male  or  female,  and  their  representatives"  equally.  Lord  Ross- 
lyn,  after  deciding  that  "  issue"  was  explained  by  the  words  "child 
or  children,"  declared  that  the  expression  "representatives"  was  also 
explained  by  the  term  "  issue,"  to  mean  children,  and  descendants  of 
deceased  children ;  his  Lordship  reading  the  will  in  this  manner ; 
"  among  all  the  issue,  child  and  children,  male  or  female,  and  their 
representatives  being  issue"  a  word,  as  we  have  seen,  comprehending 
ex  vi  termini  descendants,  however  remote,  from  the  persons  de- 
scribed, (s)  He  therefore  decreed  in  favour  of  the  issue  of  a  deceas- 
ed child  in  preference  to  its  administrator. 

4.  As  to  the  title  of  a  husband  or  wife  under  a  limitation  to  the 
personal"  or  "  legal  personal  representatives"  of  each  other. 

It  has  been  shown  in  the  fifth  and  sixth  sections  that  neither  hus- 
band nor  wife  regularly  answers  the  description  which  would  entitle 
either  of  them  to  take  under  a  bequest  to  the  relations,  or  to  the 
next  of  .kin  of  the  other  ;  but  in  order  to  include  them  in  such  limi- 
tations it  must  appear  from  the  instruments,  that  they  were  in  the 
contemplation  of  the  settlors  or  testators,  and  intended  by  the  de- 
scription as  persona  designate.  In  the  present  case,  however,  it  is 
presumed,  there  is  this  difference,  that  if  either  be  clothed  with  the 
character  of  executor  or  administrator  of  the  other,  the  prima  facie 
legal  title  attaches  to  the  office,  which  will  prevail  unless  an  inten- 
tion to  the  contrary  be  expressed  or  clearly  apparent  in  the  instru- 
ment,^) and  then  if  the  words  "  personal  representatives"  be  con- 
sidered synonimous  with  "  next  of  kin,"  the  husband  or  wife  must  be 
excluded,  since  neither  of  them,  as  before  shown,  answers  that  de- 

(r)  3  Ves.  383.  and  before  stated,  p.  90.  (*)  See  sect  4. 

(0  See  14  Ves.  382. 18  Ves.  49.  3  Ves.  231-244.  1  Ves.  sen.  84.  3  Atk.  758. 
VOL.  I,  P 


114  Description  of  Legatees.  [Cn.  II. 

scription.     But  as  this  subject  is  discussed  in  the  treatise  of  "  the 
law  of  property  arising  from  the  relation  of  husband  and  wife,"(w) 
the  reader  is  requested  to  refer  to  it. 
The  subject  next  in  order  is : 

SECT.  VIII.  The  construction  of  bequests  when  limited  to 
"EXECUTORS  and  ADMINISTRATORS." 

If  personal  estate  be  given  to  B.  his  "  executors  and  administra- 
tors," the  law  and  the  testator's  intention  concur  in  transferring  to 
B.  the  absolute  interest  in  the  legacy,(x)  so  that  if  B.  die  before  the 
testator  the  bequest  will  lapse,  and  cannot  be  claimed  by  the  execu- 
tors or  administrators  of  B.  as  will  be  shown  in  the  eighth  chapter 
which  treats  of  lapsed  legacies.  And  if  an  interest  for  life  were 
given  to  B.  with  the  ultimate  limitation,  after  prior  dispositions,  or 
subject  to  his  appointment,  to  the  executors  and  administrators  of  B. 
it  seems  that  the  absolute  interest  would  vest  in  him  if  he  survived 
the  testator,  and  his  executors  or  administrators  could  not  claim  be- 
neficially by  virtue  of  the  express  limitation  to  them ;  the  intention 
being  that  they  should  take  the  property  to  be  distributed  as  part  of 
JB's.  estate,  with  which  the  law  agrees,  such  a  limitation  of  perso- 
nalty being  analogous  to  a  limitation  of  real  property  to  the  right 
heirs  of  a  devisor. (y)  But  if  no  interest  were  given  to  B.  and  the 
bequest  were  to  his  executors  and  administrators,  it  should  seem 
that  the  individuals  answering  the  description  would  be  beneficially 
entitled,  as  persona  designate,  in  analogy  to  the  devise  of  real  estate 
to  the  heir  of  B.  without  a  previous  limitation  to  B.  whose  heir  would 
take  by  purchase  in  his  own  right,  and  not  by  force  of  the  word 
"  heir"  considered  as  a  term  of  limitation. (z)  Jl  fortiori  the  con- 
struction must  be  the  same  when  a  testator,  in  addition  to  the  gift 
to  the  executors  and  administrators,  declares  it  to  be  "  for  their  own 
use  and  benefit."  Accordingly  in  Sanders  v.  Franks,(a)  it  was  de- 
termined by  Sir  Thomas  Plumer,  that  a  limitation  of  personal  estate 
to  a  widow,  by  her  husband's  will,  for  life,  with  a  power  of  appoint- 
ment, and  in  default  of  such  disposition  "  to  her  executors  or  admi- 
nistrators for  their  own  use  and  benefit,"  did  not  vest  the  absolute 
interest  in  the  property  in  the  widow ;  but  that  she  had  an  estate  for 
life  only,  with  a  power  to  dispose  of  the  fund,  upon  the  principle, 
that  the  executors  and  administrators  took  as  purchasers,  in  their 
own  rights,  and  not  by  representation. 

It  was  noticed  in  fifth  and  sixth  sections,  that  neither  husband  nor 
wife  is  regularly  entitled  under  a  bequest  to  the  relations  or  next 
of  kin  of  the  other ;  but  it  would  seem  that  if  the  ultimate  limi- 
tation of  personal  property  be  made  to  the  executors  or  administra- 
tors" of  either  of  them,  then  if  the  husband  or  wife  be  invested  with 
either  of  those  characters,  he  or  she  will  be  entitled  to  the  bequest, 
as  answering  the  description  in  the  instrument. (6) 

SECT.  IX.    Legacies  to  et  DESCENDANTS." 

Attempts  have  been  made  to  induce  the  Court  of  Chancery  to  put 
the  same  construction  upon  the  word  "  descendants"  as  upon  the 

(M)  Ivpl.  326._  2vol.  64-66.  ,     (.r)  15_Ves.  537.  2  Mad.  155. 


15  Ves.  537.  .  (z)  2  Madd.  155. 

(a)'  Ibid,  147.  and  see  "Law  of  Husband  and  Wife,"  2  vol.  215,  &c. 
15  Ves.  537. 


SECT.  X.]  Description  of  Legatees.  115 

term  "  relations,"  but  the  Court  has  constantly  refused  the  applica- 
tion, since  the  principle  which  applies  to  the  latter  case  does  not 
apply  to  the  former;  for  when  a  bequest  is  made  to  "  relations"  un- 
less the  Court  were  guided  by  the  Statute  of  Distributions  in  ascer- 
taining the  legatees,  the  disposition  would  be  void  from  the  gene- 
rality and  uncertainty  of  the  term ;  but  when  the  word  "  descendants" 
is  used,  there  is  no  necessity  for  resorting  to  the  statute  to  fix  or 
limit  the  objects  of  the  bequest,  as  the  natural  import  of  the  term  is 
sufficient  to  include  every  individual  proceeding  from  the  stock  or 
family  referred  to  by  the  testator ;  so  that  a  legacy  "  to  the  de- 
scendants of  jB."  will  comprehend  all  his  children,  grand-children, 
&c. 

Thus  in  Crossly  v.  Clare,(c)  Mr.  Ince  devised  his  real  estate  to 
three  persons  for  their  lives,  and  the  life  of  the  survivor  of  them, 
with  remainder  "  to  the  descendants  of  Francis  Ince,  now  living  in 
and  about  Seven  Oaks  in  Kent,  or  thereafter  living  any  where  else, 
to  be  sold,  and  the  money  to  be  equally  divided  amongst  them."  He 
then  gave  4000Z.  "  to  the  descendants"  of  Francis  Ince,  in  the  same 
words.  Kindred  in  the  second  and  third  degrees  were  the  claimants, 
as  also  one  in  the  fourth  degree,  who  was  born  after  the  date  of  the 
will.  But  Sir  Thomas  Clarke.  M.  R.  decided  against  the  latter,  be- 
cause not  in  esse  when  the  will  was  made ;  and  he  determined  that 
great  grand-children  were  entitled  with  the  grand-children  to  shares 
of  the  fund,  since  they  answered  the  description  of  descendants  of 
Francis  Ince,  and  the  distribution  must  have  been  per  capita.(d) 

So  also  in  Butler  v.  Stratton,(e)  Mrs.  Stratton  devised  her  resi- 
duary real  and  personal  estates  to  trustees,  in  trust  to.  sell  the  former, 
and  divide  the  proceeds  with  his  personal  property  "  equally  between 
the  descendants  of  Thomas  Fairbank,  deceased."  When  the  testa- 
trix died,  Thomas  Fairbank  had  three  sons  and  eleven  grand-chil- 
dren ;  and  Lord  Thurlow  determined  that  all  Fairbanks  descend- 
ants, as  well  grand-children  as  children,  were  entitled  to  the  fund 
and  per  capita. 

We  shall  next  proceed  to  consider, — 

SECT.  X.  What  persons  may  claim  under  the  word  "  FAMILY." 

The  word  "  family,"  when  applied  to  personal  property,  is  syno- 
nimous  with  "  kindred"  or  "  relations."  If  Lit  be^asked,  of  what 
family  is  •#.*?  the  question  will  be  answered  in  being  informed  from 
what  person  he  is  descended;  and  whoever  is  related  by  blood  to 
that  stock,  is  related  to  and  of  the  family  of  J-L-(f)  This  being  the 
ordinary  acceptation  of  the  word  "  family,"  it  may  nevertheless  be 
confined  to  particular  relations  by  the  context  of  wills,  or  the  term 
may  be  enlarged  by  it,  so  that  the  expression  may  in  some  cases 
mean  children,  or  next  of  kin,  and  in  others  may  even  include  re- 
lations by  marriage.  In  discussing  this  subject,  the  first  considera- 
tion will  be  that  class  of  cases — 

1.  Where  the  bequest  is  immediate  and  absolute. 

If  a  legacy  be  given  to  or  for  the  benefit  of  "  .#.'«  family,"  the 
word  "  family"  may  be  so  explained  by  the  context  of  the  will,  as  to 

(c)  Ambl.  397.  and  see  Pierson  v.  Garnet,  2  Bro.  C.  C.  38.  230.  5.  P. 

(</)  3  Bro.  C.C.  369.  (<r)  3  Bro.  C,  C.  367.  (/)  9  Ves.  323. 


116  Description  of  Legatees.  [Cn.  II. 

be  construed  to  mean  the  children  of  A.  and  A,  will  take  no  interest 
in  the  fund. 

Accordingly,  in  Barnes  v.  Patch,(g)  the  testator  Jefferson,  after 
declaring  his  intention  to  provide  for  his  children,  devised  his  resi- 
duary estate  equally  between  his  two  natural  children  Thomas  and 
Arabella,  to  be  paid  at  their  ages  of  twenty-one,  with  benefit  of  sur- 
vivorship, but  if  both  died  before  that  period,  (which  event  hap- 
pened,) he  gave  "  the  remainder  of  his  estate  to  be  equally  divided 
between  his  brother  Lancelot's  and  his  sister  Esther's  families." 
Lancelot  was  living,  and  had  eight  children  at  the  testator's  death. 
Esther  died  before  the  testator,  leaving  ten  children ;  and  it  was  de- 
cided by  Sir  W.  Grant,  M.  R.  that  by  the  word  "  family,"  children 
were  intended,  and  that  the  distribution  was  to  be  made  per  capita, 
a  construction  which  excluded  Lancelot. 

So  also  in  MlLeroth  v.  Bacon,(h)  Lord  AlvanUy  said,  that  where 
a  legacy  is  given  to  trustees  for  a  married  woman  and  her  "  family," 
the  construction  of  such  a  bequest,  without  other  circumstances, 
would  be,  that  it  should  be  applied  for  her  and  her  children. 

And  if  the  word  "  family"  be  used  in  devising  freehold  estates,  as 
to  A.  for  life,  with  remainder  to  his  family,  it  seems  that  A.'s  heir 
at  law  will  be  entitled  under  that  description. (i) 

It  is  not  so  clear  when  the  fund  is  a  mixed  one,  consisting  of  real 
and  personal  estates,  and  the  limitation  is  to  the  "  family"  of  J.  S. 
or  /.  S.  for  life,  remainder  to  his  "  family ;"  or,  after  several  dispo- 
sitions, the  ultimate  limitation  is  "  to  the  family  of  the  devisor," 
whether  the  heir  will  take  the  whole  fund  or  only  the  real  estate, 
and  the  next  of  kin  the  personalty.  Lord  Eldon,  in  Wright  v.  At- 
kyns,(k)  appears  to  have  intimated  an  opinion,  that  since  it  had 
been  decided  at  law,  that  under  the  word  "  relations, "(i)  next  of 
kin  should  take  freehold  estate ;  and  since  the  heir  had  been  held 
by  law  to  be  entitled  to  the  land  under  the  word  "  family,"  it  was 
only  fair  that  the  heir  should  be  at  liberty  to  take  the  personal  fund, 
under  a  limitation  of  both  real  and  personal  estate,  to  the  "  family" 
of  A. 

The  only  decision  upon  this  point  appears  to  be  the  short  note 
mentioned  below,  and  referred  to  in  Wright  v.  Atkyns. 

Regularly,  the  person  designated  by  law  to  take  real  property 
upon  intestacy,  is  the  heir ;  and  the  persons  to  take  personal  estate 
are  next  of  kin.  Hence,  it  seems  a  consequence,  when  real  and  per- 
sonal property  are  devised  together  in  such  a  manner,  as  to  render 
it  uncertain  who  are  the  individuals  intended  by  the  description 
adopted,  that  the  law  will  give  the  freehold  estate  to  the  heir,  and  the 
personal  to  the  next  of  kin.  Such  appears  to  have  been  the  opin- 
ion of  the  Master  of  the  Rolls  from  the  following  short  note  :  "  1732, 
under  a  limitation  to  the  family  of  J.  S.  the  real  estates  descend  to 
the  heir  at  law;  the  personal  estate  goes  to  the  next  of  kin."(m) 
Also,  in  the  same  case  of  Wright  v.  Atkyns,(n)  Sir  W.  Grant  ob- 
served, that  the  word  "  family,"  when  applied  to  personalty,  could 

(g)  8  Ves.  604--60T.  (A)  5  Ves.  166. 

(0  Chdfiman'8  case,  Dy.  333.    Counden  v.  Clerke,  Hob.  33.    Wright  v.  Jtlcyns, 
Coop.  122.    Doe  v.  Smith,  S  Maule  &  Selw.  126, 
Mr)  Coop.  123.  (A  Sufira,  sect  5.  p.  92. 

(TO)  1  Taunt  266.    17  Ves.  263.  (n)  17  Ves*263. 


SECT.  X.]  Description  of  Legatees.  117 

not  be  contended  to  mean  the  heir  at  law.  This,  with  the  general 
rule,  would,  as  is  presumed,  have  afforded  sufficient  authority  for  an 
opinion,  that  a  devise  of  real  and  personal  estate  to  A.  for  life,  re- 
mainder to  his  "  family,"  would  have  entitled  the  heir  to  the  land, 
and  the  next  of  kin  to  the  personal  property,  if  Lord  Eldon  had  not 
thought  it  reasonable,  that  since  courts  of  law  permitted  the  next  of 
kin  to  take  freehold  estate  by  the  term  "  relations,"  a  court  of  equity 
should  allow  the  heir  to  take  the  personal  under  the  word  "  family," 
when  the  disposition  was  of  both  funds.  The  conclusion,  however, 
seems  liable  to  these  observations ;  that  unless  the  courts  of  law  had 
construed  the  word  "  relations"  to  mean  next  of  kin,  there  would 
have  been  an  intestacy  as  to  the  land,  from  the  uncertainty  of  who 
was  meant  by  the  expression  "  relations,"  and  the  heir  would  have 
taken  by  descent ;  a  consequence  which  would  not  have  followed  if 
the  word  adopted  had  been  "  family  ;"  for  in  such  a  case  the  law 
gives  the  real  estate  to  the  heir,  either  by  purchase  or  limitation,  ac- 
cording to  the  terms  of  the  devise  ;  and  a  court  of  equity  distributes 
the  personal  property  among  the  next  of  kin  :  there  is,  therefore,  no 
necessity  to  alter  the  ordinary  legal  and  equitable  constructions  be- 
fore mentioned,  for  the  purpose  of  preventing  an  intestacy,  since 
the  heir  can  take  the  freehold  estate,  and  the  next  kin  the  person- 
al, without  any  inconvenience,  each  class  of  representatives  answer- 
ing the  description  of  the  bequest.  And  there  is  no  objection  to 
using  the  word  "  family"  in  two  different  senses  in  the  same  will, 
when  it  is  applied  to  different  subjects ;  so  that  it  may,  consistently 
with  the  construction  adopted  in  analogous  cases,  mean  the  heir 
when  the  subject  is  freehold  estate  ;  and  also  next  of  kin  when  re- 
ferred to  personal  property. (p)  Perhaps  the  right  conclusion  may 
be,  that  whether  the  devise  of  freehold  and  personal  estates  be  made 
to  A.  for  life,  with  remainder  to  his  family,  or  to  the  devisor's  family 
after  the  death  of  A.  the  heir  will  be  entitled  to  the  land,  and  the 
next  of  kin  to  the  personal  property. 

This  conclusion,  however,  can  only  be  drawn  when  the  will  af- 
fords no  intention  contrary  to  the  title  of  the  next  kin  to  the  person- 
ality ;  for  we  have  seenQ>)  that  an  heir  may  take  personal  estate  un- 
der the  word  "  heir,"  as  persona  designates.  If  then  the  real  and 
personal  estates  be  so  devised,  that  it  appears  to  have  been  the  tes- 
tator's meaning,  that  both  of  them  should  go  and  be  enjoyed  toge- 
ther, it  is  presumed,  in  analogy  to  the  case  of  Gwynne\.Muddock,(q) 
that  as  the  heir  is  legally  entitled  to  the  freehold  estate,  he  will  also 
be  entitled  to  the  personal. 

It  appears  from  the  foregoing  observations,  that  when  no  inten- 
tion appears  that  the  word  "  family"  was  meant  to  designate  any 
particular  class  of  individuals,  the  next  of  kin  of  the  person  descri- 
bed will  be  entitled ;  a  title  depending  upon  the  same  principle 
which  regulates  a  bequest  to  "  relations"  generally. (r) 

Since  then,  the  word  "  family"  is  a  synonimic,  with  the  term  "  re- 
lations," it  follows  that  bequests  to  "  family"  are  to  be  contrued  by 

(o)  See  Lord  Ellenborough's  observations  in  Doe  v.  Smith,  5  Maule  &  Selw.  131. 

\fi)  Ante,  sect,  3.  p.  88. 

( g)  14  Ves.  488.  and  see  the  sect,  and  page  last  referred  to. 

(r)  See  ante,  sect.  5.  p.  92.    9  Ves.  319. 


118  Description  of  Legatees.  [Cn.  II. 

the  same  rules  that  are  to  be  applied  to  relations,  not  only  as  to  the 
manner  and  proportions  in  which  the  family,  *.  e.  next  of  kin,  are  to 
divide  the  property  among  them  in  compliance  with,  the  terms  of  the 
will,  but  also  in  regard  to  the  particular  persons  in  the  class  of  next 
of  kin,  who  are  to  be  preferred  to  others  of  the  same  class,  in  conse- 
quence of  the  descriptions  in  the  bequests  :  these  subjects  are  mi- 
nutely considered  and  detailed  in  the  fifth  section,  treating  of  lega- 
cies to  relations,  to  which  the  reader  is  referred. 

It  has  been  noticed,  that  a  legacy  to  relations  does  not  regularly 
include  those  by  marriage  ;(*)  and  the  principle  of  that  exclusion 
equally  applies  when  the  bequest  is  to  "  family  ;"  but  a  contrary  in- 
tention of  a  testator  appearing  from  his  testament,  will  alter  the  con- 
struction. 

Thus  in  the  case  of  M'Leroth  v.  Bacon,(t)  Mr.  Lloyd  bequeathed  to 
Martha,  youngest  daughter  of  W.  Rolfe,  and  wife  of  M'Leroth,  1000J. 
which  he  directed  to  be  paid  to  her  father  Rolfe,  for  her  benefit,  to 
be  settled  by  him  to  her  separate  use,  and  as  a  provision  for  herself, 
and  for  the  benefit  of  her  children,  if  Rolfe  should  think  .proper  and 
so  direct ;  or  that  the  whole,  or  any  part  of  it  should  be  paid  and 
applied  "  for  the  benefit  of  his  said  daughter  and  her  family,  but 
either  immediately  or  in  future,  as  Rolfe  might  think  most  useful 
and  beneficial  to  her  and  her  family,  and  as  Rolfe  should  appoint ;" 
the  testator  empowering  him  at  discretion,  to  direct  the  manner  in 
which  the  legacy  should  be  applied  for  the  benefit  of  Martha  and 
"  her  family  ;"  but  if  Rolfe  died  without  having  made  such  direction, 
the  money  was  to  be  paid  as  Martha  should  appoint,  "  to  be  applied 
for  the  benefit  of  her  and  her  family."  Rolfe  gave  no  effectual  di- 
rection for  the  application  of  the  money,  and  Martha,  in  exercise  of 
the  power,  appointed  by  deed  800/.  of  the  1000J.  to  her  husband 
absolutely,  and  the  dividends  of  the  residue  she  settled  upon  herself 
for  life,  remainder  to  her  husband  for  life,  with  remainder  as  to  the 
capital  to  her  children,  &c.  To  carry  into  effect  that  appointment, 
was  the  object  of  the  suit  by  Martha  and  her  husband ;  and  the 
question  was,  whether  the  appointment  to  him  was  authorized  by  the 
power  9  Lord  Mvanley  was  of  opinion  in  the  affirmative,  upon  con- 
struction of  the  whole  will,  which  enabled  Rolfe,  had  he  done  so,  to 
advance  any  part,  or  the  whole  immediately,  or  in  any  way  he 
thought,  under  all  circumstances,  most  beneficial  for  Martha  and  her 
family ;  terms  that  would  have  authorized  him  to  make  an  advance- 
ment for  setting  up  the  husband  in  trade.  Such  being  the  mean- 
ing and  effect  of  the  power  given  to  Rolfe,  his  Honour  conceived 
that  his  daughter  Martha  was  intended  to  have  similar  authority 
and  discretion,  if  her  father  omitted  to  exercise  his  own  ;  so  that  un- 
der those  circumstances,  her  appointment  to  her  husband  was  valid, 
as  being  within  the  terms  of  the  power  explained  by  the  context  of 
the  will. 

With  the  last  case  we  shall  introduce  the  second  class  of  authori- 
t\es,(viz] — 

2.  Where  the  bequests  were  not  immediate  to  the  objects  com- 
prised in  the  word  "  family,"  but  were  connected  with  a  power  of 
appointment. 

(•)  Ante,  p.  106.  (0  5  Ves,  159. 


SECT.  XL]  Description  of  Legatees.  119 

In  treating  upon  the  word  "  relations,"  it  was  shown  that  when  a 
testator  delegates  to  an  individual  a  power  to  distribute  a  fund  among 
such  of  his  (the  testator's)  relations  as  he  pleases,  that  person  may, 
notwithstanding  the  Statute  of  Distributions,  by  which  that  term  is 
in  general  construed,  appoint  to  persons  not  comprehended  within 
the  Act ;  and  that  if  he  make  no  appointment,  a  court  of  equity  will 
distribute  the  property  among  the  testator's  next  of  kin  living  at  the 
death  of  the  donee  of  the  power. (M)  It  is  presumed,  that  the  same 
rule  is  equally  applicable,  where  the  property  is  so  given  to  the  tes- 
tator's "  family"  and  the  word  is  to  be  construed  synonimous  to  "re- 
lations." 

If  then  a  testator  give  his  residuary  personal  estate  to  "  such  of 
his  family  as  A,  shall  appoint,"  or  to  A.  for  life,  and  afterwards  "  to 
such  of  A?s  family  as  A.  shall  appoint,"  A.  may  appoint  to  relatives 
not  within  the  Statute  of  Distributions ;  or  if  he  die  without  execut- 
ing his  power,  the  Court  of  Chancery  will  divide  the  fund  among 
the  next  of  kin  living  at  the  death  of  A.  To  the  cases  referred  to 
in  note (w),  that  of  Cruwys  v.  Colman,(x)  may  be  added.  There 
Dorothy  Cruwys  appointed  her  sister  Bridget,  sole  executrix  and 
residuary  legatee ;  desiriag  that  Bridget  at  her  death,  would  be- 
queath "  to  those  of  her  own  family,  what  she  had  in  her  power  ta 
dispose  of,  that  was  the  testatrix's."  Bridget  made  no  such  dispo- 
sition, and  her  nephew,  who  was  her  sole  next  of  kin  at  her  decease, 
claimed  the  whole  residue  in  that  character,  in  preference  to  the 
testatrix's  next  of  kin  living  at  her  decease.  Sir  W.  Grant  decreed 
in  favour  of  the  nephew,  as  next  of  kin  of  Bridget;  observing,  that 
this  was  a  trust  for  her  next  of  kin,  and  so  declared  in  the  will ;  and 
not  for  the  next  of  kin  of  the  testatrix ;  but  which  made  no  difference 
is  this  case ;  for  that "  where  a  power  of  selection  was  given  in  favour 
of  a  testator's  own  relations,  and  that  power  was  not  exercised,  the 
property  undisposed  of,  would  go  to  the  next  of  kin,  at  the  death  of 
the  party  who  had  the  power.  Therefore,  even  if  this  had  been  a 
trust  for  the  testatrix's  "  family,"  it  would  have  been  for  such  as 
were  next  of  kin  at  Bridget's  death ;  so  either  way  the  nephew  was 
entitled  to  the  whole  of  the  property." 

But  if  ASs  authority,  instead  of  a  power  of  selection,  be  confined 
merely  to  ascertaining  the  shares  of  such  of  the  testator's  "  family" 
as  could  claim  under  the  Statute  of  Distributions,  and  who  would  be 
the  next  of  kin  ;  then  if  no  appointment  be  made,  or  if  made,  should 
it  be  void  by  the  nomination  of  relations  not  within  the  Statute,  the 
testator's  next  of  kin  living  at  his  death,  would  alone  be  entitled  to 
the  property,  as  being  the -sole  objects  of  the  power.(7/) 

SECT.  XL   Legacy  to  " NEPHEWS  AND  NIECES." 
The  reasoning  in  the  cases  stated  in  the  eighth  and  ninth  divisions 
of  the  second  section  of  the  present  chapter,  applies  to  bequests  to 
nephews  and  nieces,  and  to  which  the  reader  is  referred. 

In  the  case  of  Falkner  \.Butler,("z)  the  testator  directed  the  resi- 
due of  his  personal  estate  to  be  invested  in  the  names  of  trustees,  in 
trust  for  his  wife  for  life ;  and  after  her  decease,  the  principal  to  be 

(M)  See  ante,  sect.  5,  p.  97,  and  the  cases. 

f x)  9  Ves.  319,  and  see  Wright  v.  Atkyns,  Coop.  120. 

(y)  See  Poflev.  Whitcombe,  SMeriv.  689,  stated  aufira,  p.  96.     (2)  Amb.  514. 


120  Description  of  Legatees.  [Cn.  II. 

paid  among  such  of  his  relations,  sisters,  nephews,  and  nieces,  as  his 
wife  should  by  will  appoint.  The  wife  surviving  the  testator,  by 
will  appointed  7001.  part  of  the  funds,  to  George  Olave,  the  testator's 
nephew  in  law,  in  trust  for  his  children.  Sir  Thomas  Sewell,  M.  R. 
was  clearly  of  opinion  that  the  power  of  appointment  was  confined 
to  nephews  and  nieces,  and  could  not  be  extended  to  great  nephews 
and  nieces. 

The  recent  case  of  Shelley  v.  Bryer,(a)  is  a  stronger  case  to  the 
same  point ;  inasmuch  as  there  was  there  strong  ground  to  argue, 
that  at  least  one  of  the  testator's  great  nieces  was  intended. 

In  that  case,  the  testator  gave  the  produce  of  the  sale  of  his  resi- 
duary real  and  personal  estate,  after  the  death  of  his  sister,  Susannah 
Shelley,  equally  to  be  divided  between  his  nephews  and  nieces  who 
might  then  be  living.  By  codicil,  he  gave  to  his  infant  niece,  Har- 
riet Shelley,  whom  he  had  not  then  seen,  the  sum  of  5001.  over  and 
above  her  share,  after  the  decease  of  his  sister,  in  the  body  of  his  will 
treated  of  more  at  large. 

Harriet  Shelley,  the  infant  legatee,  was  a  great  niece  of  the  testator. 
At  the  time  of  the  testator's  death,  he  had  several  nephews,  two 
great  nephews,  but  no  niece,  nor  any  great  niece,  except  the  plain- 
tiff. Previously  to  Susannah  Shelley's  death,  several  great  nephews 
and  great  nieces  were  born.  It  was  contended  that  the  plaintiff, 
though  a  great  niece,  must  be  included  as  being  specifically  named 
in  the  will.  The  great  nephews  and  great  nieces  contended,  they 
were  entitled  to  be  included  as  nephews  and  nieces,  the  testator 
having  shown  his  meaning  in  the  use  of  the  words  nephews  and 
nieces,  by  calling  Harry  Shelley  his  niece,  she  being  in  fact,  his 
great  niece.  For  the  nephews  it  was  contended,  that  the  cases  de- 
ciding that  the  word  "  children"  did  not  comprehend  "  grand-chil- 
dren," governed  the  present,  and  that  the  implication  contended  for, 
could  not  be  allowed  to  enlarge  the  express  meaning  of  the  words 
used;  and  that  it  was  only  a  mistaken  recital  of  a  legacy.  Sir  Tho- 
mas Plumer,  M.  R.  concurred  in  the  argument  for  the  nephews, 
though  he  confessed  there  was  difficulty  on  both  sides ;  but  his  Ho- 
nour thought  it  was  better  to  abide  by  the  terms  which  were  express, 
than  to  take  upon  himself  by  inference,  to  enlarge  them,  either  to  let 
in  the  plaintiff  or  the  other  great  nephews  and  nieces. 

SECT.  XII.  Legacies  to  "  FIRST  and  SECOND  COUSINS." 
Lord Kenyon,M.R. determined  in  the  case  ofMayott  \.Mayott,(b) 
that  under  a  bequest  to  all  the  testator's  first  and  second  cousins  of 
the  name  of  Mayott,  first  cousins  of  that  name  once  removed,  living 
at  the  testator's  death,  were  entitled  with'  a  first  cousin  of  the  same 
name.  There  appeared  to  be  no  person  at  the  decease  of  the  testa- 
tor of  the  name  ofMayott,  who  was  strictly  the  second  cousin. 

SECT.  XIII.  Bequests  to  "  GOVERNMENT." 
A  legacy  to  government  for  the  benefit  of  the  public,  is  to  be  dis- 
posed of  under  the  King's  appointment  by  sign  manuel.  The  Crown 
is  to  direct  its  application  to  a  proper  use. 

Accordingly  in  Newland  v.  Attorney  General,(c)  Abraham  New- 
land  bequeathed  stock  "  to  his  Majesty's  government  in  exoneration 

(a)  1  Jacob,  207.        (d)  2  Bro.  C.  C.  125.  ed.  by  Belt.         (c)  3  Meriv.  684. 


SECT.  XIV.]          Description  of  Legatees.  121 

of  the  national  debt."     Lord  Eldon  directed  the  fund  to  be  trans- 
ferred to  such  person  as  the  King  should  appoint  under  sign  manual. 

SECT.  XIV.    Legacies  to  Servants. 

1.  In  order  to  answer  the  description  of  servant  so  as  to  be  in- 
cluded in  a  bequest  "  to  servants,"  it  seems  •essential  that  there 
should  be  a  contract  between  the  testator  and.  the  claimant,  out  of 
which  the  relation  of  master  and  servant  could  arise,  and  also  such 
an  engagement  as  would  entitle  the  master  to  the  service  of  the  in- 
dividual during  the  whole  period,  i.  e.  during  each  and  every  part  of 
the  time  for  which  he  contracted  to  serve.  If,  then,  an  individual 
were  in  the  employ  of  a  testator  in  consequence  of  an  agreement  be- 
tween the  testator  and  another  person,  and  the  servant  was  not  only 
in  the  employ  of  the  testator,  but  also  of  the  person  contracted  with; 
or  if  from  the  nature  of  the  engagement  and  service,  the  person  em- 
ployed could  not  be  considered  a  servant  in  the  usual  acceptation 
of  that  word,  he  would  not  be  entitled  under  a  bequest  to  servants. 
The  following  cases  will  illustrate,  the  above  observations. 

In  Chilcotv.  Bromley, (d)  Mr.  Bromley,  after  giving  legacies  to  two 
of  his  servants,  if  in  his  service  at  his  death,  bequeathed  to  his  "  other 
servants"  who  should  be  living  with  him  at  that  time,  50Z.  apiece,  and 
101.  each  for  mourning.  He  revoked  the  two  latter  legacies  by  a 
codicil,  and  gave  "  to  all  his  other  servants,  in  lieu  thereof  500/.  each, 
and  201.  each  for  mourning."  Under  this  bequest,  the  plaintiff,  a 
coachman,  who  was  provided  for  the  testator  by  a  job-master,  to- 
gether with  a  carriage  and  horses  in  the  usual  course  of  business, 
claimed  the  legacies  bequeathed  to  servants  .by  the  codicil,  and  evi- 
dence produced  on  both  sides  (which  was  contradictory)  was  admit- 
ted to  prove  and  disprove  the  plaintiff  being  servant  to  the  testator 
in  the  usual  acceptation  of  the  term.  Sir  W.  Grant  decided,  that  the 
plaintiff  was  not  a  servant  within  the  intent  and  meaning  of  the  will. 

And  in  Townsend  v.  Windham,(e)  the  Duke  ofBolton  bequeathed 
a  year's  wages  "  to  such  of  his  servants  as  should  be  living  with  him 
at  his  death."  The  Court  declared,  that  stewards  of  courts,  and  such 
other  servants  as  were  not  obliged  to  pass  their  whole  time  in  their 
master's  service,  were  not  servants  within  the  meaning  of  the  bequest; 
remarking  at  the  same  time,  that  it  could  not  confine  the  terms  of 
bequest  to  such  servants  only  who  lived  at  the  testator's  house,  or 
had  diet  from  him. 

2.  It  is  observable,  that  part  of  the  description  of  the  servant- 
legatees  required,  their  being  in  the  service  of  the  testator  at  the  time 
of  his  death;  a  circumstance  which,  in  general,  must  be  complied 
with.  Still  a  servant  may  be  considered  by  a  testator  as  continuing 
in  his  employment,  and  be  intended  to  take  under  the  bequest, 
although  he  quitted  the  testator's  house  previously  to  his  death.  The 
evidence  admissible  in  such  case  is,  that  the  person  was  in  reality 
in  the  service  of  the  testator  at  his  death,  so  as  to  answer  the  des- 
cription in  the  instrument ;  and  to  establish  which  fact,  declarations 
of  the  testator  upon  the  subject  cannot  be  rejected  ;  but  testimony 
that  the  testator  meant  a  servant,  notwithstanding  his  having  left  the 
testator's  service,  to  take  a  legacy  bequeathed  to  servants  only  in  his 

(rf)  12  Ves.  114.  (0  2  Vern.  546. 

VOL.  I.  Q, 


122  Description  of  Legatees.  [Cn.  II. 

employment  at  his  death,  cannot  be  received,  as  it  is  in  direct  op- 
position to  the  will.(/ ) 

All  these  points  were  discussed  and  settled  in  the  case  of  Herbert 
v.  Reid,(g)  which  was  first  determined  by  Sir  W.  Grant,  and  after- 
wards confirmed  by  Lord  Eldon  upon  appeal.     Robert  Bretclijfbe- 
queathed  to  the  plaintiff,  Jane  Herbert,  "  if  in  his  service  at  the  time 
of  his  death,"  a  specific  legacy  of  5001.  three  per  cent  consols ;  and 
he  gave  his  residuary  estate  to  his  executors,  Reid  and  Rogers.  Jane 
quitted  the  testator's  house  a  few  days  before  his  death  ;  yet  she 
claimed  the  legacy,  upon  the  ground  that  although  she  had  left  the 
dwelling  of  the  testator,  she  did  not  leave  his  service,  but  was  con- 
sidered by  him  as  his  servant  up  to  the  period  of  his  decease.     This 
was  the  fact  established.     Reid  and  Rogers  (who  were  defendants) 
did  not  assert  in  their  answers,  that  Jane,  in  leaving  the  testator's 
house,  quitted  his  service,  but  confined  their  direct  allegation  to  her 
leaving  his  dwelling.     Jane  produced  three  witnesses  who  proved 
declarations  of  the  testator,  that  she  was  to  return  home  again  when 
he  got  better ;  and  that  he  had  left  her  500Z.  by  his  will ;  also  that 
the  testator,  in  conversation  with  one  of  them  upon   the  question 
whether  he  should  leave  Jane's  legacy  weekly,  or  as  he  had  left  it 
by  his  will,  resolved,  upon  the  advice  of  the  witness,  not  to  alter  his 
will.     The  result  of  this  testimony,  if  admissible,  proved  that  Jane, 
although  out  of  the  testator's  house,  was  still  considered  by  him  to 
be  in  his  service,  and  a  legatee  in  his  will.     Upon  such  testimony, 
Sir  W.  Grant  determined  that  Jane  was  entitled  to  the  legacy,  a 
decision  approved  of  and  confirmed  by  Lord  Eldon ;  and  upon  the 
following  grounds  : — 1.  That  the  evidence  was  admissible  to  prove 
that  Jane  was  in  the  testator's  service  at  his  death  ;  justice  requiring 
the  reception  of  it,  since  no  person  except  the  master  and  servant 
could   furnish   evidence  upon  that  fact ;    and  from  necessity  the 
master  must  explain  quo  animo  he  sent  his  servant  from  his  house, 
viz.  whether  as  putting  an  entire  period  to  the  relation  between 
master  and  servant,  or  merely  as  suspending  the  performance  of 
service :  2.  That  the  evidence  proved  that  Jane's  departure   from 
the    house    was   only   a   suspension    of  her   service  :    and   lastly, 
that  evidence  would   have   been  inadmissible  to  show  the   testa- 
tor's intention  that  Jane  should  have  the  legacy,  notwithstanding 
she  might  not  be  in  his  employ  as  a  servant  in  his  house  at  the  time 
of  his  death. 

Having  now  brought  to  a  conclusion  our  review  of  the  autho- 
rities fixing  and  establishing  the  construction  of  words  referring  to 
individuals  in  classes  as  to  relations,  &c.  so  far  as  relates  to  the 
persons  answering  those  descriptions  ;  it  will  be  -useful  to  collect 
the  cases  dispersed  through  the  preceding  sections  in  order  to  ascer- 
tain : 

SECT.  XV.  The  different  periods  of  time  at  which  persons 
answering  the  descriptions  of  family,  relations,  next  of 
kin,  personal  representatives,  issue,  heirs,  and  descendants, 
(to  whom  bequests  were  made  by  those  terms  generally, 

(/)  16  Ves,  486.  489.  (5-)  Ibid.  481. 


SECT.  XV.]  Description  of  Legatees.  123 

and  without  discrimination)  were  required  to  be  in  esse, 
for  the  purpose  of  participating  in  the  legatory  fund. 

In  the  different  classes  of  persons  just  enumerated,  children  are 
omitted,  since  the  present  subject,  so  far  as  it  relates  to  them,  has 
been  minutely  considered  in  the  first  section  of  this  chapter ;  to 
which,  therefore,  the  attention  of  the  reader  is  directed.  Most  of 
the  rules,  constructions,  and  distinctions  there  laid  down  and  taken, 
are  equally  applicable  to  bequests  made  to  persons  by  the  words 
before  enumerated.  We  shall  proceed,  as  in  the  first  section  to 
consider, 

1.  When  next  of  kin^  &c.  living  at  the  date  of  the  will  are  solely 
and  exclusively  entitled. 

If  the  will  express,  or  clearly  show  that  a  testator,  in  bequeathing 
to  the  relations,  next  of  kin,  or  descendants  of  a  deceased  individual, 
referred  to  such  of  them  as  were  in  existence  when  the  will  was 
made,  they  only  will  be  entitled ;  as  if  the  bequest  was  "  I  give 
lOOO/.to  the  descendants  of  the  late  A.  B.  now  living,"  those  descen- 
dants only  in  esse  at  the  date  of  the  will  can  claim  the  legacy. (h) 

2.  But,  in  general,  a  will  begins  to  speak  at  the  death  of  the  tes- 
tator, and,  consequently,  in  ordinary  cases  relations,  next  of  kin, 
issue,  descendants,  &c.  living  at  that  period  will  alone  divide  the 
property  bequeathed  to  them  by  those  words. (i)     Such  is  the  gene- 
ral rule  of  construction  when  the  legacy  is  immediate  to  relations, 
&c.(*) 

That  rule  will  not  be  altered,  although  the  fund  be  given  to  one 
.or  more  persons  for  life,  previously  to  the  limitation  by  the  testator 
to  his  own  relations,  &c.  If,  then,  he  bequeath  his  residuary  estate 
to  his  relations,  or  next  of  kin,  after  first  limiting  it  to  JB.  for  life  ; 
next  of  kin  living  at  the  death  of  the  testator,  and  not  at  the  demise 
of  B.  will  alone  be  entitled,  and  that  construction  will  be  adopted, 
although  B.  the  tenant  for  life,  may  be  one  of  the  next  of  kin,(7) 
except  a  contrary  intention  appear  from  the  will  as  after  mentioned 
in  this  section. 

So  also,  if  a  general  power  of  appointment  had  been  given  to  B. 
and  in  the  event  of  his  not  making  any,  remainder  to  the  next  of 
kin  to  the  testator  A.  those  next  of  kin  only  living  at  the  death  of 
A.  will  be  entitled.(m) 

Or  if  the  power  had  not  been  general,  but  restricted,  to  the  ascer- 
taining of  the  shares  of  persons  to  whom  the  bequest  was  made  by 
the  word  relations,  &c.  the  testator's  next  of  kin  in  esse  at  his  de- 
cease would  be  exclusively  entitled,  and  not  the  persons  only  an- 
swering the  description  of  his  next  of  kin,  living  at  the  death  of  B. 

(A)  Crossly  v.  Clare,  Ambl.  397.  ante,  p.  115.  and  see  sect.  1.  of  this  chapter, 
p.  45  to  52. 

(2)  Vide  sect.  1.  pi.  2.  p.  48.  to  52. 

(k)  Bridge  v.  Abbot,  3  Bro.  C.  C.  224.  ante,  p  110.  Hollotvay  v.  Hollo-way, 
S  Ves.  399.  sufira,  p.  85.  Vaux  v.  Henderson,  1  Jac.  &  Wai.  388,  note  ;  sujira, 
p.  85. 

(1)  Rayner  v.  Moivbraii,  3  Bro.  C.  C.  235.  Masters  v.  Hooher,  4  Bro.  C.  C. 
207.  Doe  v.  Laivson,  3  East,  278.  Harrington  \.  Harte,  1  Cox.  131,  and  see 
the  Master  of  the  Rolls'  observations  in  Jones  v.  Colbeck,  8  Ves.  38.  See  also 
Bird  v.  Wood,  sufira;  p.  107. 

OH)  Seethe  case  last  referred  to. 


124  Description  of  Legatees.  [Cn.  II. 

Suppose  then  the  bequest  be  to  relations,  in  such  shares  and  pro- 
portions as  B.  shall  appoint.  If  B.  make  no  appointment,,  the  tes- 
tator's next  of  kin  inesse  at  his,  (the  testator's)  decease,  will  be  sole- 
ly and  exclusively  entitled.  (w) 

To  the  general  rule  before  stated,  the  intention  of  testators  or 
necessity,  may  create  exceptions,  which  we  will  consider  under  the 
following  head  : 

3.  When  relations,  next  of  kin,  &c.  living  at  the  death  of  a  stran- 
ger, or  a  tenant  for  life  of  the  property,  will  be  entitled  to  it  in  ex- 
clusion of  the  representatives  of  those  next  of  kin,  surviving  the  tes- 
tator, but  dying  before  the  fund  becomes  distributable.  (o) 

If  a  testator  express,  or  his  intention  otherwise  appear  from  his 
will,  that  a  bequest  to  his  relations,  &c.  living  at  the  death  of  a  per- 
son, or  upon  the  happening  of  any  other  event,  should  take  the  fund 
his  next  of  kin  only  in  existence  at  the  period  described,  will  be  en- 
titled, in  exclusion  of  the  representatives  of  such  of  them  as  happened 
to  be  then  dead. 

An  instance  of  this  kind  occurred  in  the  case  of  Long  v.  'Black- 
all,(p)  before  in  part  stated,  where  the  testator  gave  lease-hold 
property  upon  death  of  his  last  surviving  son,  without  leaving  issue 
male,  &c.  (to  whom  he  had  limited  the  estates,)  "to  such  persons  as 
should  thenbe  his,  (the  testator's)  legal  representatives."  The  event 
happened  upon  which  its  last  limitation  was  to  take  place  ;  and  it 
was  determined,  that  the  testator's  next  of  kin  living  at  the  death  of 
the  survivor  of  the  sons,  were  entitled  in  exclusion  of  the  personal 
representatives  of  persons,  next  of  kin  to  the  testator  at  his  decease, 
who  did  not  survive  the  son.  . 

So  if  the  testator  delegate  a  power  to  a  person  to  select  and  ap- 
point to  his  relations,  &c.  his  residuary  estate,  and  the  donee  omit 
to  execute  the-  power,  the  next  of  kin  of  the  testator  living  at  the 
death  of  the  donee,  will  be  the  only  persons  entitled  to  the  proper- 
ty, (q)  a  necessary  construction  founded  upon  the  circumstances  of 
the  case  ;  for  since  the  persons  to  take,  are  uncertain,  while  the  do- 
nee of  the  power  lives  without  executing  it,  in  consequence  of  their 
being  dependent  upon  his  will  and  pleasure,  no'  interest  could  vest 
in  any  of  the  testator's  next  of  kin,  prior  to  the  execution  of  such 
power,  or  the  death  of  the  donee,  a  circumstance  distinguishing  the 
present  case  from  that  before  mentioned,  of  the  donee's  power  being 
limited  to  ascertaining  the  shares  of  the  next  of  kin  ;  for  the  next  of 
kin  in  existence  at  the  testator's  death,  took  vested  interests,  liable" 
only  to  be  devested  in  regard  to  the  proportions  they  were  to  take, 
if  the  donee  should  exercise  his  power. 

Suppose,  then,  a  legacy  to  be  thus  bequeathed  :  "  to  such  of  my 
relations  or  family,  as  my  wife  in  her  discretion  shall  think  proper 
to  appoint  by  will,  &c."  If  the  widow  make  no  appointment,  or 
an  invalid  one,  the  testator's  next  of  kin  living  at  her  death,  will  be 
the  only  persons  entitled  to  the  fund.(r) 


(n)  Pope  v.  Whitcombe,  3  Meriv.  689.  ante,  p.  96, 
(o)  See  sect.  1.  of  this  chapter,  p.  59  to  62. 


3  Ves.  486.  ante,  p.  112,  (?)  See  ante,  sect  5.  p.  98. 

(r)  Crutoys  v.  Colman,  9  Ves,  325.     Harding  v.  Glyn,  1  Atk.  469.  -sufira,  n. 
300.     Cole  v.  Wade,  15  Ves,  27.  43.  ante,  p.  99. 


SECT.  XV.]  Description  of  Legatees.  125 

Or  if  such  power  be  committed  to  more  than  one  person,  and  it 
by  any  means  become  extinct  during  the  lives  of  the  donees,  it 
should  seem  that  as  the  testator's  next  of  kin  would  take  vested  in- 
terests at  that  period,  of  the  power  becoming  extinct,  those  then  in 
existence  would  be  the  only  persons  who  could  make  a  title  to  the 
property.(s) 

It  has  been  noticed,  that  although  property  were  bequeathed  to 
one  or  more  persons  for  life,  prior  to  the  ultimate  limitation  by  the 
testator  to  his  own  relations,  yet  his  next  of  kin  living  at  his  death, 
would  be  entitled.  But  since  the  intention  of  a  testator,  is  the  lead- 
ing consideration  in  the  construction  of  his  will,  if  his  meaning  ap- 
pear in  the  context,  to  refer  to  relations,  &c.  at  that  period,  when 
the  fund  is  distributable,  viz.  upon  the  happening  of  an  event  to  oc- 
cur after  his  decease,  his  next  of  kin  in  existence  at  that  time,-  and 
not  when  he  died,  will  be  solely  and  exclusively  entitled  to  the  be- 
quest.^) 

Accordingly,  in  Jones  v.  Colbeck,(u)  Thomas  Dawson  bequeathed 
his  residuary  estate  to  trustees,  to  pay  out  of  the  interest  an  annuity 
of  201.  to  his  brother,  William  Dawson,  for  life,  and  the  surplus  in- 
terest for  the  support  and  education  of  the  children  of  his  (the  tes- 
tator's) daughter,  Mary  Overton,  during  the  life  of  William,  and 
after  William's  death,  to  pay  the  capital  among  such  children 
equally,  at  twenty-one,  with  benefit  of  survivorship  :  but  until  Mary 
had  a  child  or  children,  or  if  she  survived  them,  or  if  she  had  none, 
the  trustees  were  to  pay  to  her  (subject  to  the  annuity)  the  interest 
for  life  to  her  separate  use  ;  and  after  the  death  of  Mary  and  of  her 
children  under  twenty-one,  he  gave  the  residue-  to  be  distributed 
"  among  his  relations,"  in  a  due  course  of  administration.  Mary 
was  the  testator's  only  child,  and  sole  next  of  kin  living  at  his  death  ; 
but  had  she  been  then  dead,  his  next  of  kin  would  have  been  cer- 
tain nephews  and  nieces  (to  whom  he  had  given  legacies  by  that 
description  in  his  will,)  and  all  of  whoni  died  before  Mary  ;  and  she 
also  died  without  issue,  leaving  great  nephews  and  great  niecesy 
children  of  the  nephews  and  nieces  before  referred  to,  the  only  next 
of  kin  of  the  testator  living  at  her  (Mary's)  death.  The  question 
was,  what  class  of  next  kin  was  entitled '?  If  the  testator's  next  of 
kin  at  his  decease,  Mary's  personal  representatives  would  be  enti- 
tled unless  she  were  excluded  by  taking  the  interest  of  the  whole  for 
life,  under  the  will,  as  contended  by  the  representatives  of  the  ne- 
phews and  nieces,  who  would  have  been  the  sole  next  of  kin,  if  Mary 
had  not  survived  the  testator.  But  if  the  testator's  next  of  kin  living 
at  the  death  of  Mary  were  only  entitled,  then  his  grand  nephews  and 
grand  nieces  were  those  persons  ;  and -in  whose  favour  Sir  W.  Grant 
determined  upon-  the  apparent  intention  of  the  testator,  to  refer  to 
relations  not  at  his  own  death,  but  at  that  of  Mary  Overton.  His 
Honour  conceived  that  Mary  could  not  possibly  be  meant  by  the 
terms  "my  relations,"  she  being  an  only  child,  and  the  distribution 
of  the  fund  directed  to  be  made  among  relations  ;  and  that  had  she 
been  intended,  the  testator  would  have'given  to  her  the  residue  in 
direct  terms,  and  not  by  so  strange  and  circuitous  a  phraseology. 

(s)  Doyley  v.  Attorney  General,  4  Vin.  Abr.  485.  pi.  16.  • 

(0  Marsh  v.  Marsh,  1  Bro.  C.  C.  293.  ed.  by  Belt.  (u)  8  Ves.  38. 


126  Description  of  Legatees.  [Cn.  II. 

The  representatives  of  Man/  being  thus  excluded,  those  of  the 
nrphews  and  nieces  could  not  be  more  successful ;  for  the  testator 
supposed  that  Mart/  would,  as  she  did,  survive  him,  and  he  knew 
that  she  wa^  his  nearest  relation :  so  that  had  he  intended  his 
nephews  and  nieces  to  be  substituted  in  Mary's  place,  as  next  to 
her  in  relation  to  himself,  he  would  not  have  used  an  expression 
which  necessarily  included  her,  •  but  would  have  given  expressly  to 
the  nephews  and  nieces,  all  of  whom  were  previously  mentioned  as 
legatees  by  that  description ;  and  in  addition  to  these  remarks,  the 
nephews  and  nieces  did  not  answer  the  description  of  next  of  kin  at 
the  death  of  the  testator,  a  character  which  was  indispensable  to 
their  making  a  good  title  to  the  bequest.  Under  such  circum- 
stances, the  Master  of  the  Rolls  was  of  opinion,  that  the  testator 
meant  his  relations,  i.  e.  his  next  of  kin  in  existence  at  the  death  of 
Mary;  an  intention  which  entitled  the  grand  .nephews  and  grand 
nieces  to  the  whole  residue.  His  Honour  remarking  at  the  same 
time,  that  in  the  absence  of  such  an  intention  referring  to  relations, 
at  a  period  beyond  the  death  of  the  testator,  the  case  of  Holloway 
v.  Holloway,(x)  was  an  authority  that  the  mere  gift  of  an  interest 
for  life  to  the  daughter,  would  not  have  been  sufficient  to  exclude 
her  from  taking  the  residue  under  the  description,  and  in  the  cha- 
racter of  sole  next  of  kin  of  the  testator  living  at  his  decease. 

The  next  subject  of  our  consideration  will  be— 

SECT.  XVI.  When  the  fund  given  to  Legatees,  by  the 
description  of  "family/7  "relations,"  "  next  of  kin, 
&c."  is  to  be  divided  among  thejn  either  per  capita,  or 
per  stirpes,  or  both  per  stirpes  et  capita. 

Upon  questions  of  this  kind,  the  expressions  in  each  will  must  be 
attended  to  ;  for  according  as  the  distribution  is  directed  by  the  tes- 
tator, so  it  must  be  made.  We  shall  consider, — 

1.  Instances  in  which  the  legatees  will  take  per  capita. 

When  the  bequest  is  to  "  relations,"  "  family,"  &c.  without 
mentioning  the  proportions  in  which  the  fund  is  to  be  divided,  the 
Statute  of  Distributions^)  will  regulate  the  number  and  manner  in 
which  the  legatees  (who  are  next  of  kin)  are  to  take  the  property. 

Suppose,  then,  a  legacy  to  be  given  to  the  testator's  relations 
generally.  If  his  next  of  kin  be  related  to  him  in  equal  degree, 
as  brothers,  there  being  no  children  of  a  deceased  brother,  the 
brothers  will  divide  the  fund  among  them  in  equal  shares,  i.  e.  per 
capita;  each  being  entitled  in  his  own  right  to  an  equal  share.  So 
it  would  be  if  all  the  brothers  had  died  before  the  testator,  one 
leaving  two  children,  another  three  children,  <tc.  all  the  nephews 
and  nieces  would  take  equal  shares  per  capita  in  their  own  rights, 
and  not  as  representing  their  parents ;  because  they  are  sole  next  of 
kin,  and  related  to  the  testator  in  equal  degree. (z) 

But  if  the  testator's  next  of  kin  happen  not  to  be  related  to  him 
in  equal  degree,  as  a  brother,  and  the  children  of  a  deceased 
brother,  so  as  that  under  the  statute  the  children  would  take  per 

(JT)  5  Ves.  399.  (t/)  22  &  23  Car.  II.  chap.  10. 

(z)  Walxh  v.  Walsh,  Pre.-Cha.  54.  and  see  1  P.  Will.  595.  Durant  v.  PreSt- 
•wood,  1  Atk.  454.  Davers  v.  Dewes,  3  P.  Will.  50.  Lloyd  v.  Teach,  2  Ves. 
sen.  213.  and  Mascall's  Intest,  73.  in  which  a  variety  of  cases  is  collected. 


SECT.  XVI.]          Description  of  Legatees.  127 

stirpes  as  representing  their  parent, .  viz.  the  share  which  he  would 
have  taken,  had  he  been  living ;  yet  if  the  testator  has  shown  an  in- 
tention that  his  next  of  kin  shall  be  entitled  to  his  property  in  equal 
shares,  i.  e.  per  capita,  the  distribution  by  the  statute  will  be  super- 
seded. This  may  occur  when  the  bequest  is  to  "  relations,"  "  next 
of  kin,"  &c.  to  be  equally  divided  among  them ;  or  by  expressions 
of  the  like  import. 

If,  then,  the  testator's  next  of  kin  be  a  brother,  and  three  chil- 
dren of  a  deceased  brother,  and  the' bequest  is  to  the  testator's  "  re- 
lations," or  to  the  relations  of  B.  to  be  equally  divided  among  them, 
each  child  will  be  entitled  to  an  equal  share  with  the  brother,  the 
distribution  being  to  be  made  per  capita ;  which  would  not  have 
been  so  if  the  testator  had  died  intestate  ;  for  in  that  event  the  pro- 
perty must  have  been  divided  into  two  parts,  and  the  children  would 
have  taken,  by  representation,  their  father's  share  per  stiij)es.(a) 

It  has  been  noticed,  that  when  the  terms  of  the  bequest  are  so 
general  in  regard  to  the  objects,  as  to  occasion  a  virtual  intestacy, 
it  becomes  necessary  to  resort  to  the  Statute  of  Distributions.  In 
these  instances,  the  interests  whiqjl  the  next  of  kin  take  under  the 
act,  are  in  common.  The  statute  creates  the  tenancy  in  common, 
and  to  convert  that  interest  into  a  joint  tenancy,  there  must  be  ex- 
press declaration  in  the  will :  a  mere  bequest  to  "  relations,"  &c. 
will  not  be  sufficient  for  the  purpose.  But  this  is  reversed  when  the 
legacy  is  to  "  descendants"  or  "  issue ;"  for  we  have  seen  that  dis- 
positions in  those  terms  are  not  regulated  by  the  statute. (6)  The 
persons,  therefore,  entitled  under  those  words,  claim  altogether  by 
the  will,  which  must  be  interpreted  in  tiff  usual  manner.  Hence, 
if  the  bequest  be  to  "  descendants"  or  to  "  issue"(  generally,  the 
individuals  answering  the  description  will  take  as  joint  tenants, (c) 
but  if  words  of  severance  be  added,  or  the  bequest  be  .to  descen- 
dants or  issue,  to  be  equally  divided  among  them,  they  will  be  en- 
titled as  tenants  in  common,  and  take  equal  shares  per  capita. 

Suppose,  then,  a  bequest  of  money  to  "  descendants"  or  "  issue" 
of  the  testator,  or  of  a  deceased  person,  to  be  equally  divided  among 
them ;  and  that  at  the  death  of  the  testator,  there  were  children,  and 
issue  of  some  of  them  ;  also  issue  of  deceased  children,  and  great- 
grand-children,  whose  parents  were  dead  ;  the  fund  would  be  divi- 
sible among  all  of  them  per  capita  in  equal  shares,  the  grand-chil- 
dren, whose  parents  were  living,  not  being  excluded  ;(rf)  for  every 
one  of  them  answers  the  description  in  the  will,  and  each  is  capable 
of  showing  a  title  in  his  own  right. 

The  construction  will  be  the  same,  if  the  legatees  be  described 
under  the  word  "  family,"  as  Sir  W.  Grant  determined  in  the  case 
of  Barnes  \.Patch(e)  before  stated. (/) 

It  is  indifferent  with  respect  to  the  application  of  this  rule  of  inter- 
pretation, although  the  instrument  containing  the. limitation  be  a  deed. 
•  Accordingly  in  Leigh  v.  N0rbury,(g)  Mr.  JVorthington  vested  in 

(a)  Thomas  v.  Hole,  Forrest,  251.  stated  supra,  p.  92.  and  see  1  Bro.  C.  C.  33. 
(A)  See  sect.  4.  p.  88.  sect.  IX.  p.  114. 
(c)  Davenport  v.  Hanbury,  3  Ves.  259.  supra,  p.  88. 

(rf)  freeman  v.  Parsley,  3  Ves.  421.  stated  supra,  p.  88.  Crossly  v.  Clare, 
Ambl.  397.  ante  p.  115.    Pierson  v  Garnet,  2  Bro.  C.  C.  38.  230. 
(e}  8  Ves.  604.  (/)  Stated  supra,  p.  116.  (g)  13  Ves.  340. 


128  Description  of  Legatees.  [CH.  II. 

the  trustees  of  hi.s  marriage  settlement  "  all  his  personal  property 
in  trust  !<>r  himself  for  lifbj  and  after  his  death  to  pay  1001.  to  hisin- 
temled  wife  in  lieu  of  dower  and  thirds,  and  then  to  apply  the  fund 
>rd  ing  to  his  appointment;  but  if  he  made  none,  in  trust  to  dis- 
pose of  the  property  unto  and  equally  among  the  lawful  "  issue"  of 
Ijim  (H'orthing(on)."  There  was  no  issue  of  that  marriage  ;  but  Mr. 
fl'orthington  left  five  children  by  a  former  wife,  and  died  without, 
making  any  appointment.  It  also  appeared  that  he  left  grand-chil- 
dren at  his  death,  who  claimed  equal  shares  of  the  fund  with  the 
children.  And  Sir  W.  Grant  declared  the  property  to  be  divisible 
among  all  the  children  and  grand-children,  per  capita. 

The  rule  of  construction  we  have  been  considering  as  applicable 
to  bequests  made  to  "  issue,"  "  descendants,"  and  "  family,"  equally 
holds  when  legacies  are  given  to  persons  in  existence,  and  the  "  chil- 
dren" of  others  who  are  dead  ;  an  instance  of  which  occurred  in  the 
following  case : 

In  Butler  v.  Stratton,(h)  Mrs.  Stratton  'devised  freehold  houses  to 
trustees,  to  sell  and  divide  the  produce  equally  between  Robert  Strat- 
ton, John  Stratton,  and  the  "  chiWren"  of  Mary  Patterson.  Mary  had 
three  children  living  at  the  death  of  the  testatrix ;  and  the  question  was, 
whether  they  should  take  per  stirpes  ?  in  which  case  the  fund  would 
be  divisible  into  three  parts,  to  one  of  which  only  the  three  children 
would  be  entitled  ;  or,  whether,  they  should  take  per  capita  ?  in 
which  event,  the"  property  would  be  divisible  into  ./we  parts,  and  each 
child  entitled  to  an  equal  share  with  the  Strattons  in  its  own  right. 
And  Lord  Thurlow  determined  that  the  distribution  was  to  be  made 
per  capita. 

So  also  in  Blackler  v.  Webb,(i)  Mr.  Bagwell,  having  had  several 
children,  some  of  whom  wrere  dead  leaving  children,  bequeathed  his 
residuary  personal  estate  equally  to  his  son  Janies,  and  to  liis  son 
Peter's  children,  to  his  daughter  Traverse,  and  to  his  daughter 
Webb's  children,  and  to  his  daughter  Mann.  When  the  will  was 
made,  the  testator's  son  Peter  was  dead,  having  left  several  children; 
the  testator's  daughter  Webb  was  then  living,  and  her  husband  being 
in  needy  circumstances,  the  testator  made  a -pro vision  for  her  in  his 
will,  which  he  settled  to  her  separate  use.  Under  these  circum- 
stances, the  question  was,  whether  the  testator's  children  should 
take  per  capita  or  per  stirpes?  And  it  was  determined  by  Lord 
King,  that  according  to  the  true  construction  of  the  will,  strengthen- 
ed by  the  fact  of  the  daughter  Webb's  children  being  unable  to  take 
by  representation,  as  their  mother  was  living,  the  fund  was  to  be  dis- 
tributed among  the  children  and  grand-children  per  capita.  We  shall 
now  consider, — 

2.  When  the  legatees  take  per  stirpes. 

In  instances  wThere,  under  a  bequest  to  relations,  &.c.  those  per- 
sons only  who  are  next  of  kin  are  entitled,  and  the  Statute  of  Dis- 
tributions is  adopted,  not  only,  to  ascertain  the  persons  to  take,  but 
also  the  proportions  and  manner  in  which  the  property  is  to  be  divi- 
ded ;  the  will  being  silent  upon  these  subjects,  if  the  next  of  kin  of 
the  person  described  be  not  related  to  him  in  equal  degree,  those 

(A)  3  Bro.  C.  C.  367. 

(i)  2  P.  Will.  383.  and  see  Weld  v.  Bradbury,  2  Vern.  705. 


SECT.  XVI.]          Description  of  Legatees.  129 

most  remote  can  only  claim  per  stirpes;  i.  e.  in  right  of  the  persons 
who  would  have  been  entitled  under  the  statute  if  they  had  been 
living.  Hence  it  appears  that  the  taking  per  stirpes  always  pre-sup- 
poses  an  inequality  of  relationship. 

Suppose,  then,  a  testator  to  bequeath  a  legacy  to  his  "  relations" 
or  "  next  of  kin,"  and  that  he  left  at  his  death  two  children,  and 
three  grand-ohildren,  the  children  of  a  deceased  child ;  the  grand- 
children wouldi  take  their  parent's  share  ;  i.  e.  one-third  per  stirpes 
under  the  statute,  as  representatives  of  their  deceased  parent. 

Thus  in  Stamp  v.  Cooke,(k]  the  testator  bequeathed  his  residuary 
estate  to  his  wife  for  life,  and  after  her  death,  his  executors  were  to 
divide  the  same  among  his  next  relations,  as  sisters,  nephews  and 
nieces.  The  testator  left  at  his  death  three  sisters,  a  child  of  a  de- 
ceased brother,  and  a  child  of  a  deceased  sister ;  and  one  of  the  three 
sisters  had  two  children  living  when  the  testator  died,  and  who  claim- 
ed shares  in  the  fund,  as  answering  the  description  of  nephew  and 
niece  of  the  testator  under  the  will.  But  Lord  Kenyon,  M.  R.  de- 
cided, first,  that  the  testator's  intention,  that  the  residue  should  be 
divided  otherwise  than  according  to  the  statute,  was  not  sufficiently 
clear,  and  therefore  distribution  should  be  made  according  to  the 
act  which  excluded  the  two  children  of  the  living  sister.  And  second, 
that  by  the  statute  the  fund  was  divisible  into  five  parts  ;  three  of 
which  belonged  to  the  three  sisters,  and  the  remaining  share  to  the 
two  children  of  the  deceased  brother  and  sister,  per  stirpes. 

It  is  observable,  in  the  last  case,  that  there  was  nothing  in  the 
will,  either  as  to  the  persons  or  the  proportions  in  which  they  were  to 
take,  manifesting  an  intention  in  the  testator  to  dispose  of  his  pro- 
perty in  a  manner  different  from  the  statute  j  the  Court,  therefore, 
could  not  depart  from  the  directions  of  the  act,  which  declared  that 
children  of  deceased  brothers  and  sisters  should  take,  per  stirpes, 
the  shares  of  their  parents,  where  there  were  brothers  and  sisters  in 
existence. 

In  considering  the  distribution  per  capita,  it  was  noticed  that  a 
bequest  to  relations  or  next  of  kin  equally,  or  to  descendants  or 
:  issue  of.individuals  generally,  entitled  in  the  first  case  the  children 
of  deceased  brothers  and  sisters  to  take  per  capita  with  surviving 
brothers  and  sisters ;  and  that  in  the  second  case  all  descendants 
of  the  person  described,  viz.  children,  grand-children,  &,c.  were  also 
entitled  per  capita.  But  although  the  bequest  direct  an  equal  dis- 
tribution, and  notwithstanding  the  objects  of  bounty  be  described 
by  the  term  "  descendants,"  yet,  if  from  other  expressions  in  the 
will,  it  appears  to  have  been  the  testator's  intention  that  the  descen- 
dants of  deceased  legatees  should  take  by  representation,  i.e.  per 
stirpes,  such  intention  will  prevail.  An  instance  of  this  occurred  in 
the  following  case : 

In  Rowland  v.  Gorsuch,(l)  Dr.  Talbot  made  the  following  dispo- 
sition :  "  As  to  the  residue  of  my  fortune,  I  will  and  devise  that  the 
descendants  of  each  of  my  first  cousins  deceased,  partake  in  equal 
shares  and  proportions  with  my  first  cousins  now  alive."  The  ques- 
tion was  between  first  cousins  of  the  testator,  and  the  descendants  of 
first  cousins  who  died  before.  And  Lord  Kenyon  decided  the  fol- 

(*)  1  Cox.  235.  (/)  2  Cox,  187. 

VOL.  I.  R 


130  Description  of  Legatees.  [Cn.  II. 

lowing  points :  first,  that  the  term  "  descendants"  was  explained  by 
the  word  "representatives,"  and  therefore  embraced  such  descend- 
ants only  of  the  first  cousins,  who  died  before  the  testator,  as  were 
their,  next  of  kin  at  his  decease  ;  and  secondly,  that  they  took  per 
stirpes  ;  "  for,"  said  his  Lordship,  "  if  any  person  is  under  the  neces- 
sity of  making  his  claim  as  representative,  he  must  take  the  share  in 
the  same  manner  as  the  person  he  represents." 

The  remaining  subject  for  consideration  under  the  present  section 

is — 

3.  When  legatees  take  both  per  stirpes  and  per  capita. 

Where  a  testator  bequeaths  personal  estate  to  several  persons  as 
tenants  in  common,  with  a  declaration  that  upon  all  or  any  of  their 
deaths  before  a  particular  time,  their  respective  shares  shall  be 
equally  divided  among  the  issue  or  descendants  of  each  of  them,  and 
they  die  before  the  arrival  of  the  period,  some  leaving  children, 
others  children  and  great  grand-children,  and  others  grand-children, 
and  more  remote  descendants;  in  such  case  the  issue  of  each  de- 
ceased person  will  take  their  parent's  shares  per  stirpes;  and  such 
issue,  whether  children  only,  or  children  and  grand  children,  &,c. 
will  divide  each  parent's  share  among  them  equally  per  capita. 

Suppose,  then,  a  person  to  devise  the  money  to  arise  from  the  sale 
of  his  real  estate  to  his  three  sisters  and  his  niece,  if  they  were  living, 
at  the  failure  of  issue  male  of  his  son  (to  whom  he  devised  the  estate 
in  tail  male ;)  but  if  they  or  any  of  them  were  then  dead,  their  re- 
spective issue  should  be  entitled  to  the  shares  of  their  parents  in 
equal  shares.  Suppose  also  the  three  sisters  to  die  before  their  bro- 
ther, who  left  no  issue  male,  and  that  one  sister  had  children,  the 
second  sister  children  and  great  grand-children,  and  the  third  sister 
grand-children  only;  the  distribution  would  be  per  stirpes  and  per 
capita;  for  the  children  of  the  first  sister  would  take  her  share  per 
stirpes  and  per  capita  among  themselves.  The  children  and  great 
grand-children  of  the  second  sister  would  take  her  share  per  stirpes 
and  per  capita  among  themselves,  the  children  and  great  grand-chil- 
dren being  entitled  to  equal  shares ;  and  the  grand-children  of  the 
third  sister  would  take  in  the  same  manner  as  the  children  of  the 
first.  Such  was  the  case  of  JVythe  v.  Blackman  stated  in  a  former 
page.(rn)  The  principle  seems  to  be  the  following  :  that  the  testa- 
tor intended  each  parent  a  distinct  share  of  his  property  if  existing 
at  the  happening  of  the  particular  contingency;  but  if  not,  then  that 
each  of  their  shares  should  belong  to  their  respective  issue  to  whom 
it  was  given,  as  tenants  in  common ;  and  the  word  "  issue"  compre- 
hending all  lineal  descendants,  entitled  children,  grand-children,  (fee. 
without  distinction. 

It  was  remarked,  in  considering  bequests  to  children,  that  in  ge- 
neral they  must  literally  answer  the  description  and  character  given 
of  them  by  the  will ;  and  it  was  also  shown  that  the  rule  admits  of 
Exception  when  the  intention  is  clear  that  these  children  are  not 
meant  to  be  excluded,  although  in  some  particulars,  they  fail  in  an- 
swering the  terms  of  the  will.  It  is  proposed  now  to  consider  : 

(m)  1  Ves.  sen.  196,  ante,  p.  70. 


SECT.  XVII.]          Description  of  Legatees.  131 

SECT.  XVII.  The  effect  of  Mistakes  in  the  names  of  Legatees 

generally. 

1.  When  an  error  in,  or  the  omission  of,  a  name  will  be  rectified 
by  the  description  of  the  person,  or  the-context  of  the  will. 

In  Stockdale  v.  Bushby,(n]  Thomas  Stockdale  bequeathed  "  to  his 
namesake,  Thomas  Stockdale,  the  second  son  of  his  brother,  John 
Stockdale,"  1000J.  when  he  attained  twenty-one.  John  had  no  son 
of  the  name  of  Thomas,  and  his  second  son  was  called  William, 
who  claimed  the  legacy.  And  Sir  W.  Grant  determined  in  his 
favour,  upon  the  principle-  that  the  mistake  in  the  name  was  obviat- 
ed by  the  accurate  description  given  of  the  person,  viz.  the  second 
son  of  John  Stockdale. 

The  last  decision  accords  with  authorities  which  establish  that, 
where  the  name  has  been  mistaken,  either  in  a  will  or  deed,  it  will 
be  corrected  from  the  instrument,  if  the  intention  appear  in  the 
description  of  the  legatee  or  donee,  or  in  other  parts  of  the  will  or 
deed. 

Thus  lands  were  given  to  the  mayor  and  chamberlain  of  Bartholo- 
mew's Hospital,  who  were  incorporated  by  a  different  name,  the 
devise  was  held  good;  and  Weston,  J.  observed,  that  if  lands 
were  devised  to  A.  "  eldest  son  of  J5."  although  his  name  be  W. 
yet  the  devise  to  him  was  good,  because  there  was  sufficient  cer- 
tainty ;(o)  a  dictum  established  by  the  last  stated  case  of  Stockdale 
v.  Bushby. 

In  conformity  with  this  doctrine,  we  find  Lord  Coke  stating  in  his 
Commentary  upon  Littleton,(p]  that  a  wife  is  a  good  name  of  pur- 
chase without  a  Christian  name,  and  that  so  it  is  if  a  Christian  name 
be  added  and'mistaken,  as  Em  for  Emelyn,  &c.  for  utile  per  inutile 
non  vitiatur.  Also,  that  if  lands  be  given  to  Robert  Earl  of  Pem- 
broke, where  his  name  is  Henry,  or  to  George  Bishop  of  Norwich, 
where  his  name  is  John,  and  so  of  an  abbot ;  for  in  these  and  the 
like  cases  there  can  be  but  one  of  that  dignity  or  name,  and,  there- 
fore, such  a  grant  is  good,  albeit  the  name  of  baptism  be  mistaken. 

Also  in  Pitcairne  v.  Brase,(q}  the  devise  was  to  William  Pitcairne, 
the  eldest  son  of  Charles  Pitcairne,  of  Twickenham;  the  name  of 
the  eldest  son  was  Andrew,  yet  that  was  held  a  good  devise,  the 
error  in  name  being  rectified  by  the  description  of  the  person. 

In  the  last  case,  although  the  second  son  had  been  named  William, 
so  that  there  would  have  been  one  person  answering  the  name  and 
another  the  description,  still,  if  the  context  of  the  will  afforded  evi- 
dence that  the  error  was  merely  in  the  name,  it  is  presumed  that  the 
eldest  son  would  have  been  entitled.  Suppose  then  the  estate  to 
have  been  previously  limited  by  the.  testator  to  several  persons  in 
succession  for  life,  with  remainder  to  their  first,  second,  and  other 
sons  successively  in  tail,  remainder  to  Charles  Pitcairne  for  life, 
then  to  his  eldest  son  William  for  life,  remainder  to  his  first  and 
other  sons  in  tail,  remainder  to  Andrew,  second  son  of  Charles  for 
life,  remainder  to  his  first  and  other  sons  in  tail,  with  remainder  to 
J.  A.  third  son  of  Charles,  for  life,  &.c.  Now  although  the  name  of 


(») 

infra. 


19  Ves.  381.  Coop.  229,  5.  C.  and  see  Dowset  v.  Sweet,  Ambl.  175,  stated 
(o)SLeon,  18.  (/O  3.  a.  (y)    Finch's  Rep.  403. 


132  Description  of  Legatees.  [Cr.  II. 

the  second  son  be  William,  and  the  name  of  the  eldest  be  Andrew, 
it  is  conceived  that  the  eldest  son  would  be  entitled  to  the  estate, 
since  it  plainly  appears  from  the  context  of  the  will  to  have  been 
the  intention  of  the  testator,  that  the  sons  of  each  tenant  for  life 
should  succeed  according  to  priority  of  birth ;  hence  it  is  obvious, 
that  his  calling  the  eldest  son  of  Charles  by  the  name  of  William, 
was  a  mistake,  which  the  contents  of  the  will  were  sufficient  to 
correct. 

When  a  bequest  is  made  to  a  class  of  individuals  nominatim,  and 
the  name  or  Christian  name  of  one  of  them  is  omitted,  and  the  name 
or  Christian  name  of  another  is  repeated ;  if  the  context  of  the  will 
show  that  the  repetition  of  name  was  an  error,  and  the  name  of  the 
person  omitted  was  intended  to  have  been  inserted,  the  mistake  will 
be  corrected. 

An  instance  of  this  occurred  in  Garth  v.  Meyrick.(r)  There  a 
testator  gave  his  residuary  estate  to  his  six  grand-children,  by  their 
Christian  names.  The  name  of  Ann  (one  of  them)  was  repeated,  and 
that  of  Elizabeth  (another  of  them)  was  omitted.  The  context  of 
the  will  clearly  showed  the  mistake  which  had  occurred,  and  in  con- 
sequence the  Court  rectified  it,  by  admitting  Elizabeth  to  an  equal 
share  in  the  bequest. 

The  same  result  will  follow,  if  the  name  of  one  in  the  class  of  le- 
gatees be  totally  omitted,  and  the  mistake  appear  from  the  context 
of  the  will. 

Thus  in  Humphreys  v.  Humphreys,(s)  the  testator  gave  his  re- 
siduary personal  estate  "  to  be  divided  equally  among  his  seven  chil- 
dren A.,  B.,  C.,  D.,  E.  and  F."  (naming  only  six.)  He  had  eight 
children  at  the  date  of  his  will,  but  it  appeared  from  it  that  he  con- 
sidered one  of  them  as  fully  provided  for  by  other  means.  And  the 
Court  decreed  the  seven  other  children  to  take  the  residue  in  equal 
shares ;  the  intention  of  the  testator  to  include  his  seven  children 
being  apparent  by  the  will,  which  not  only  showed,  but  corrected 
the  omission  of  the  name  of  one  of  them. 

Such  is  the  rule  of  law  applicable  to  mistakes  in  the  names  of 
legatees,  when  the  ascertaining  of  the  objects  solely  depends  upon 
the  context  of  the  will;  but  in  instances  where  such  context  is  in- 
sufficient for  the  purpose,  parol  evidence  will  be  admitted  to  prove 
the  mistakes  in  the  names  or  additions  of  the  legatees,  and  to  ascer- 
tain the  person  intended.  Thus  in  the  case  before  supposed,  next 
after  that  ofPitcairne  v.  Erase,  Andrew  might  prove  that  he  was  the ' 
person  intended,  and  that  the  error  was  not  in  name,  but  description. 
The  principle  is  this :  that  when  it  became  necessary  to  apply  the 
terms  of  the  bequest  to  the  object  described,  they  were  found  not 
literally  to  apply ;  as  part  of  the  description  referred  to  one  person 
and  the  remainder  to  another.  Hence  a  latent  ambiguity,  not  ap- 
parent on  the  will,  was  raised  from  that  circumstance  in  regard  to 
the  individual  meant  by  the  testator,  which-  let  in  evidence  to  show 
that  he  was  mistaken  in  the  description,  and  to  prove  whom  he  in- 
tended for  his  legatee.(f)  We  shall  therefore  proceed, — 

(O  1  Bro- C.  C.  30.  (,)  2  Cox,  186. 

(0  See  Doe  v.  Huthwaite,  3  Barn.  &  Aid.  632-642.  and  the  opinion  of  Lord 
Kenyon  in  Thomas  v.  Thomas,  6  Term  Rep.  676.  and  infra,  sect.  18.  p.  140. 


SECT.  XVII.]        Description  of  Legatees.  133 

2.  To  produce  instances  where  the  errors  in  naming  legatees  have 
been  rectified  by  the  admission  of  parol  evidence. 

It  has  long  been  settled,  that  parol  evidence  is  to  be  admitted  to 
raise  and  remove  latent  ambiguities.  An  instance  of  a  latent  ambi- 
guity has  been  just  given.  It  arises  from  the  description  in  the  will 
being  made  impossible  or  uncertain  in  application  from  collateral 
circumstances  ;  as  where  a  bequest  is  made  to  a  person  by  a  wrong 
name,  or  by  a  Christian  and  surname,  the  former  of  which  is  appli- 
cable to  two  persons,  evidence  may  be  given  to  prove  the  error  in 
description,  and  who  was  meant  by  the  testator  by  the  mistaken  de- 
signation. The  will  shows  that  the  testator  intended  a  benefit  to 
some  person  whom  he  had  erroneously  or  defectively  described  ;  an 
error  or  defect  which  is  discovered  in  attempting  to  ascertain  the  ob- 
ject of  his  bounty,  and  dehors  the  will.  Hence  a  presumption  arises 
of  the  testator  being  mistaken  in  naming  the  legatee  ;  and  to  rectify 
that  error  evidence  is  admissible.  (M) 

Thus  in  Masters  v.  Masters,(x)  the  testatrix  gave  200Z.  to  Mrs. 
Sawyer.  There  was  no  such  person  ever  known  to  the  testatrix  ; 
but  it  was  alleged  that  she  meant  a  "  Mrs.  Swapper"  And  the 
Court  directed  the  Master  to  inquire  whom  the  testatrix  meant  by 
"  Mrs.  Sawyer,"  and  whether  Mrs.  Swapper  was  not  intended  ;  and 
if  he  found  that  she  was  that  person,  then  she  was  to  receive  her 
legacy  in  proportion  with  the  other  legatees,  the  case  being  one  of 
abatement. 

So  in  Beaumont  v.  Fell,(y)  A.  bequeathed  500Z.  to  Catharine 
Earnley;  the  person's  name  who  claimed  the  legacy  was  Gertrude 
Yardley,3Lnd  it  was  admitted  that  no  person  named  Catharine  Earn- 
ley set  up  any  right  to  the  legacy  ;  but  it  appeared  in  evidence  that 
the  testator's  voice  'when  he  made  his  will  was  very  low,  and  hardly 
intelligible;  that  he  usually  called  the  presumed  legatee  Gatty, 
which  the  scrivener,  who  took  instructions  for  drawing  the  will, 
might  have  easily  mistaken  for  Katy;  and  that  the  scrivener,  not 
having  clearly  understood  who  the  legatee  of  500Z.  was,  or  what  was 
her  name,  the  testator  directed  him  to  J.  S.  and  his  wife  to  inform 
him  further  upon  the  subject,  who  afterwards  declared  that  Gertrude 
Yardley  was  the  person  intended.  It  was  also  in  proof,  that  the  tes- 
tator had  declared  in  his  life-time,  that  he  would  do  well  for  Ger- 
trude by  his  will.  And  the  Master  of  the  Rolls  decreed  that  the 
legacy  to  Gertrude  Yardley,  though  by  the  description  of  Catharine 
Earnley  was  valid,  observing,  that  "  the  name,  and  not  the  person, 
was  mistaken  ;  and  that  it  was  very  material  there  was  no  such  per- 
son as  Catharine  Earnley  who  claimed  the  legacy,  which,  with  the 
proofs  of  the  testator  speaking  in  a  very  low  voice  when  he  made 
his  will,  and  of  his  having  usually  called  the  plaintiff  Gatty  instead 
of  Gertrude,  and  often  declared  he  would  do  well  for  her,  was  suffi- 
cient to  entitle  her  to  the  legacy." 

If  then,  as  we  have  seen,  parol  evidence  be  admissible  to  ascer- 
tain the  legatee  when  he  is  described  by  a  wrong  Christian  and  sur- 
name, it  follows  that  such  testimony  is  equally  so,  where  his  chris- 


(u) 
(y) 


2  P.  Will.  137.     Rfver'a  case,  1  Atk.  410.  (*)  1  P.  Will.  421--425. 

2  P.  Will,  140. 


134  Description  of  Legatees.  [Cn.  II. 

tian  name  only  is  mistaken,  or  to  ascertain  his  identity  when  there 
are  two  persons  in  the  family  of  the  legatee  of  the  same  Christian 
name.  As  if  a  legacy  was  given  to  John  Thomas,  son  of  William 
Thomas,  of,  &c. ;  and  William  had  two  sons  named  John,  it  is  neces- 
>arv  and  proper  to  ascertain  by  parol  evidence  which  of  the  two 
persons  was  intended  by  the  testator.(z)  With  respect  to  mistakes 
in  the  baptismal  name  of  the  legatee,  an  instance  of  such  a  mistake 
being  rectified  by  similar  species  of  testimony,  occurred  in  the  fol- 
lowing case : 

In  Smith  v.  Coney,(a}  the  bequest  was  of  500Z.  to  •"  the  Rev. 
Charles  Smith  of  Stapleford  Tawney,  in  the  county  of  Essex, 
clerk."  The  legacy  was  claimed  by  the  Rev.  Richard  Smith,  upon 
evidence  that  there  was  no  person  answering  the  description  of  the 
legatee,  according  to  the  will ;  and  that  he,  Richard,  was,  at  the 
date  of  it,  incumbent  of  Stapleford  Tawney,  and  well  known  to 
the  testatrix,  who  had  a  great  regard  for  him.  His  claim  was 
resisted  by  the  executor,  who  set  up  another  person  as  the  intended 
legatee  that  died  before  the  testatrix.  The  suit  was  not  instituted 
until  many  years  after  the  death  of  the  testatrix,  and  six  years  after 
the  death  of  a  lady  who  lived  with  her  in  great  intimacy,  and  who, 
it  was  "suggested,  knew  her  intentions,  an  objection  which  was  ob- 
viated by  the  consent  of  the  parties.  And  upon  Lord  Alvanley  ex- 
pressing an  opinion  in  favour  of  Richard  Smith,  the  executor  with- 
drew his  gpposition  and  the  claimant  obtained  a  decree. 

So  in  Dowset  v.  Sweet, (b)  100L  was  bequeathed  to  "John  and 
Benedict,  sons  of  John  Sweet  "'who  had  two  sons  only,  James  and 
Benedict ;  and  it  being  proved  that  the  testator  was  accustomed  to 
call  James  by  the  name  of  Jacky,  he  was  declared  to  be  entitled, 
and  the  court  was  of  opinion  that  if 'the  evidence  had  only  raised 
the  ambiguity  resulting  from  the  father  having  no  son  called  John, 
the  description  in  the  will  would  have  rectified  the  error  in  name. 

SECT.  XVIII.  The  effect  of  mistakes  in  the  descriptions  of 
Legatees,  and  the  admission  of  parol  Evidence  in  those 
cases. 

1.  It  may  be  considered  as  a  settled  rule  upon  this  subject,  that 
where  the  description  of  .a  legatee  is  erroneous,  the  error  not  occa- 
sioned by  any  fraud  practised  upon  the  testator,  and  there  is  no 
doubt  as  to  the  person  who  was  intended  to  be  described,  the  mis- 
take will  not  disappoint  the  bequest.  Hence,  if  a  legacy  be  given 
to  a  person  by  a  correct  name,  but  with  a  wrong  description  or  ad- 
dition, the  mistaken  description  will  not  vitiate  the  bequest,  but  be 
rejected  ;  for  it  is  a  maxim  that  veritas  nominis  tollit  errorem  demon- 
strationis.(c.} 

Thus  in  Standen  v.  Standen,(d)  Charles  Millar  bequeathed  200Z. 
to  trustees,  in  trust,  "  to  place  Charles  Millar  Standen  and  Caroline 
Eliz  Standen,  legitimate  son  and  daughter  of  Charles  Standen,  now 
residing  with  a  company  of  players,"  apprentices,  as  the  trustees 
should  think  fit.  The  testator  then  directed  his  real  estate  to  be 

(r)  C/ieyney's  case,  5  Rep.  68.  b. 

(a)  6  Ves.  42.  and  see  Doe  v.  Danvers,  7  East,  302-3.  (£)  Ambl.  175. 

(0  Lord  Hacon's  max.  reg.  25. 

(a)  2  Ves.  jun.  589.     Dare  v.  Geary,  cited  Ambl.  375.  S,  P.    • 


SECT.  XVIII.]       Description  of  Legatees.  135 

sold,  and  gave  the  money,  with  the  residue  of  his  personal  estate, 
in  trust  for  his  wife  for  life,  and  after  her  death,  as  to  one  moiety 
for  such  person  or  persons  as  she  should  by  deed  or  will  appoint, 
and  which  she  afterwards  disposed  of  by  will ;  and  as  to  the  other 
moiety,  in  trust  for  Charles  Millar  Standen  and  Caroline  Eliz 
Standen,  legitimate  son  and  daughter  of  Charles  Standen,"  equally, 
with  survivorship  between  them,  if  either  died  before  twenty-one  or 
marriage,  with  a  further  limitation  if  both  of  them  died  before  the 
arrival  of  either  of  those  periods.  It  appeared  that  Charles  Millar 
Standen  and  Caroline  Eliz  Standen  were  illegitimate  children,  and 
one  of  the  questions  was,  whether  they  could  take  under  the  wrong 
description  of  legitimate  children  °?  It  was  contended  for  them, 
that  an  inaccurate  description  of  a  legatee  would  not  destroy  the 
effect  of  a  legacy  given  to  him  nominatim,  therefore  they  were  en- 
titled to  the  benefit  of  the  200Z.  and  the  moiety  over  which  the 
widow  had  no  power  of  appointment.  And  the  Lord  Chancellor  was 
of  the  same  opinion,  and  decreed  accordingly. 

Upon  similar  reasoning,  Lord  MvanUy's  observations  in  Kennell 
v.  Abbott,(e)  appear  to  be  founded.  He  said,  that  where  a  person 
was  supposed  to  be  a  child  of  the  testator,  and  from  motives  of  love 
and  affection  to  the  child,  conceiving  it  to  be  his  own,  he  had  given 
it  a  legacy,  and  it  afterwards  turned  out  that  he  was  imposed  upon, 
the  child  not  being  his  own,  his  Honour  was  not  disposed  to  deter- 
mine that  the  provision  for  the  child  would  totally  fail ;  for  circum- 
stances of  personal  affection  to  the  legatee  might  be  blended  with 
the  gift,  which  might  entitle  the  child,  although  he  might  not  answer 
the  character  in  which  the  legacy  was  given. 

Lord  Jllv&nley  put  another  case,  and  said,  he-  would  not  have  it 
understood  that  if  a  testator,  in  consequence  of  supposed  affection- 
ate conduct  of  his  wife,  gave  her  a  legacy  as  to  his  chaste  wife,  evi- 
dence of  violation  of  her  marriage  vow  could  be  given  for  the  pur- 
pose of  defeating  the  bequest,  since  that  would  open  too  wide  a  field. 

And  it  was  said  in  argument,  in  the  case  of  Brett  v.  Rigden,(f) 
that  if  a  bequest  were  made  to  the  wife  of  /.  S.  and  J.  S.  afterwards 
died,  whose  widow  thereupon  married  J.  D.  and  then  the  testator 
died,  the  wife  of/.  D.  would  be  entitled  to  the  legacy,  although  she 
was  not  the  wife  of  J.  S.  at  the  time  the  will  took  effect,  and  there- 
fore did  not  answer  the  description  at  that  period. 

In  Smith  v.  Campbell,(g)  the  testator,  being  resident  in  India,  be- 
queathed the  residue  of  his  property  amongst  his  nearest  surviving 
relations  "  in  my  native  country  Ireland."  When  the  testator  died, 
his  brother  and  two  sisters  resided  in  Ireland,  and  other  two  sisters 
lived  in  America.  The  question  was,  whether,,  as  the  two  latter  sis- 
ters were  not  resident  in  Ireland,  they  were  not  excluded  from  par- 
ticipating in  the  bequest ;  but  Sir  William  Grant,  M.  R.  determined 
in  their  favour,  upon  the  principle  that  the  words  "  in  my  native 
country  Ireland,"  did  not  make  part  of  the  description  which  the 
relations  were  intended  to  answer  to  entitle  them  under  the  bequest, 
but  were  merely  descriptive  of  the  place  in  which  the  testator  sup- 
posed his  relatives  to  reside,  in  which  case  it  was  immaterial  whe- 
ther the  testator  had  or  had  not  correctly  described  the  place  of 

(0  4  Ves.  808.  (/")  Plowd.  344.  (g-)  19  Ves.  400-405, 


136  Description  of  Legatees.  [Cn.  II. 

residence  of  those  who  were  sufficiently  ascertained  by  the  denomi- 
nation "  nearest  surviving  relations." 

In  the  cases  last  stated,  the  intentions  of  testators  were  presumed 
in  favour  of  the  legatees,  although  they  did  not  literally  answer  the 
description  annexed  to  the  names ;  but 

2.  Wherever  a  legacy  is  given  to  a  person  under  a  particular  de- 
scription and  character,  which  he  himself  has  falsely  assumed ;  or 
where  a  testator,  induced  by  the  false  representations  of  third  persons 
to  regard  the  legatee  in  a  relationship  which  claims  his  bounty, 
bequeaths  him  a  legacy  by  a  description  according  with  such  sup- 
posed relationship,  and  no  other  motive  for  such  bounty  can  be  sup- 
posed, the  law  will  not,  in  either  case,  permit  the  legatee  to  avail 
himself  of  the  description,  and  therefore  he  cannot  demand  his 
legacy.  The  following  cases  will  explain  this  proposition : 

In  Kennell  v.  Mbott,(h)  Mrs.  Hickman,  under  a  power  contained 
in  articles  made  between  her  and  Mr.  Lovell,  prior  to  their  supposed 
marriage,  made  the  following  testamentary  appointment,  "  to  my 
husband,  the  said  Edward  Lovell,  the  sum  of  150Z."  Mr.  Lovell  at 
the  time  of  this  fraudulent  marriage,  was  the  husband  of  another 
woman,  and  upon  a  question  whether  he  was  entitled  to  the  legacy, 
Lord  Jllvanley,  M.  R.  determined  in  the  negative,  in  consequence  of 
the  fraud  practised  upon  the  testatrix  by  Mr.  Lovett,  observing,  that 
upon  general  principles  it  would  be  a  violation  of  every  rule  which 
ought  to  prevail  as  to  the  intention  of  a  deceased  person,  if  he  per- 
mitted a  man,  availing  himself  of  the  character  of  husband  of  the 
testatrix,  which  he  falsely  assumed,  and  to  whom  in  that  character  a 
legacy  was  given,  to  take  any  part  of  the  estate  of  the  person  whom 
he  so  grossly  abused,  and  who  must  be  taken  to  have  acfed  upon  the 
duty  imposed  upon  her  (the  testatrix)  in  that  her  relative  character. 

The  principle  of  the  last  case  is  to  be  found  in  the  civil  law,  as 
appears  from  a  passage  in  the  Digest  referred  to  by  the  Court ; 
"falsam  causam  legata  non  obesse  verius  est,  quia  ratio  legandi  legato 
non  cohceret :  sed  plerumque  doli  exceptio  locum  habebit,  si  probetur 
alias  legaturus  nonfuisse.(i]  The  principle  contained  in  this  pas- 
sage, ought  (observed  Lord  Mvardey]  to  govern  courts  of  justice, 
and  which  he  considered  to  have  been  adopted  in  ex  parte  Wallop,(k) 
a  case  (said  his  Lordship)  that  took  up  so  much  time  before  the 
Lords  Commissioners,  upon  an  application  for  a  writ  de  ventre  inspi- 
ciendo  against  a  woman,  who  had  lived  with  Mr.  Fellowes,  and  had 
made  him  believe  she  had  been  brought  to  bed  of  several  children  ; 
which  he  was  weak  enough  to  suppose  his  own.  It  was  not  a  ques- 
tion, whether  they  were  his  children  ;  for  if  so,  his  Lordship  did  not 
apprehend  the  decree  should  have  been  such  as  it  was.  But  there 
were  no  such  children.  She  had  shown  him  children  as  her's,  which 
were  not  so ;  and  he  gave  legacies  to  them,  as  her  children  by  him. 
It  was  held,  that  they  were  not  entitled.  There  two  things  were 
wanting.  The  testator  was  not  merely  deceived  as  to  their  being 
his  children ;  but  he  was  deceived  as  to  the  other  ingredient  of  the 
character,  in  which  he  gave  them  the  legacies ;  for  they  were  not 
the  children  of  that  woman. 
•  In  the  two  cases  last  stated,  the  mistakes  under  which  the  testa- 

(A)  4  Ves.  802.        0)  Book  xxxv.  tit.  I.  C.  72.  v.  6.        (£)  4  Bro.  C.  C.  90. 


SECT.  XVIII. ]       Description  of  Legatees^  137 

tors  laboured,  originated  in  their  being  grossly  deceived  and  imposed 
upon.  The  description  and  character  of  the  legatees  were  of  the 
essence  of  the  bequests,  and  it  was  a  reasonable  presumption  that  if 
the  testator  had  known  the  real  situations  of  the  legatees1,  they  would 
not  have  been  objects  of  their  bounty.  These  authorities  are  quite 
consistent  with  the  cases  before  mentioned,  where  the  errors  in  de- 
scription were  determined  not  to  vitiate  the  legacies,  as  not  being 
essential,  and  on  the.  presumption  that  personal  affection  might  have 
been  ingredients  in  the  bequests,  which  would  not  have  induced  the 
testators  to  withhold  their  bounty,  had  they  been  acquainted  with  all 
the  circumstances  of  each  case,  a  presumption  which  could  not  ra- 
tionally be  made  in  either  of  the  cases  last  stated. 

3.  The  same  principle  which  has  established  the  ad'missibility  of 
parol  evidence  to  correct  errors  in  naming  legatees,  authorizes  its 
allowance  to  rectify  mistakes  in-  the  description  of  them.  This  evi- 
dence may  be  required  either  partially,  i.  e.  merely  to  raise  a  latent 
ambiguity,  to  be  removed  by  the  terms  of  the  will ;  or  it  may  be 
wholly  necessary,  viz.  to  raise  the  ambiguity,  and  then  to  show  and 
rectify  the  mistake.  An  example  of  the  first  proposition  may  occur, 
where  a  testator  having  two  children,  Mary  and  Ann,  the  former 
married,  and  the  latter  single,  gave  a  legacy  "  to  his  three  grand- 
.children,  the  children  of  Ann"  Proof  of  the  different  circumstan- 
ces of  the  two  daughters  at  the  date' of  the  will,  would  be  admitted 
to  raise  the  latent  ambiguity  from  the  discrepancy  between  the  de- 
scription and  the  objects,  and  then  the  will  would  be  sufficient  to 
show  the  mistake  in  naming- Ann  instead  of  Mary,  and  to  authorize 
a  correction  of  the  error.  An  instance  of  the  second  proposition 
may  happen,  where  a  bequest  is  made  by  a  person-  "  to  the  children 
of  his  brother  Samuel,"  when  in  truth  the  testator  never  had  a  bro- 
ther of  that  name,  but  left  several  brothers,  each  of  them  having  chil- 
dren. In  this  case,  parol  evidence  is  necessary  and  admissible,  not 
only  to  raise  the  latent  ambiguity  before  mentioned,  but  also  to  show 
the  mistake  in  description  and  to  rectify  it,  by  demonstrating  what 
class  of  children  were  intended  by  the  testator,  under  the  erroneous 
description  of  "  children  of  his  brother  Samuel." 

In  support  of  these  remarks,  the  following  authorities  are  pro-? 
duced : 

In  Bradwin  v.  Harpur,(l]  Mrs.  Jackson  bequeathed  the  interest 
of  a  sixth  part  of  her  residuary  estate  to  her  niece  Mary  Bradwin 
for  life,  and  after  her  death  a  moiety  of  the  capital  "  to  the  said  Mary 
Bradwin 's  grand-children?  the  children  of  her  .daughter  Mary"  at 
their  ages  of  twenty-one.;  and  the  remaining  moiety  she  gave  to 
Ann,  the  daughter  of  her  said  niece,  Mary  Bradwin.  The  niece 
Mary  had  two  children  ;  Mary,  one  of  the  plaintiffs,  who  was  never 
married,  and  Ann  who  was  married,  but  died  before  the  testatrix, 
and  previously  to  the  date  of  the  will,  leaving  two  children,  William 
and  Robert  Barnes,  the  other  plaintiffs.  After  the  death  of  the 
niece,  the  suit  was  instituted,  praying  that  one  moiety  of  the  sixth 
part  of  the  residue  might  be  paid  to  the  plaintiff  Mary,  and  the  other 
half  to  the  two  Barnes's  upon  their  attaining  twenty-one ;  on  the 

(/)  Ambl.  374, 
VOL.  r.  S 


138  Description  of  Legatees.  [Cn.  II. 

ground  that  the  testatrix  so  intended,  but  by  a  mistake  of  names  had 
given  a  moiety  to  the  children  of  Mary,  who  was  never  married, 
and  the  other  moiety  to  ./inn,  who  was  dead -at  the  time  of  the  will, 
leaving  the  children  who  were  plaintiffs  in  that  suit.  It  was  in  evi- 
dence that  the  testatrix  was  eighty  years  old  when  she  made  her  will, 
and  lived  in  Derbyshire,  and  that  Mary  Bradwin,  the  niece,  and  her 
family,  lived  at  St.  Mbarfs  in  Hertfordshire,  and  that  the  testatrix 
had  never  seen  her  niece's  children  or  grand-children.  And  the 
Master  of  the  Rolls  was  satisfied  of  the  mistake,  and  the  power  df 
the  Court  to  set  it  right  by  decreeing  according  to  the  intention  ; 
and  after  an  objection  for  a  want  of  parties  had  been  removed,  the 
property  in  dispute,  being  of  small  amount,  and  the  plaintiff  Mary, 
a  pauper,  his  Honour  decreed  the  money  to  be  paid. 

Mr.  Ambler  properly  observed,  in  a  note  to  the  last  case,  that  the 
former  par.t  of -the  description  "  grand-children  and  daughter"  was 
of  itself  sufficient  to  correct  the  mistake ;  i.  e.  without  further  aid 
from  external  evidence,  than  to  show  the  error  discoverable  from  the 
application  of  the  description  to  the  objects. 

So  in  Parsons  v.  Parsons,(m)  the.  testator  created  a  trust  to  pay 
an  annuity  to  his  brother  Edward  Parsons  for  life,  and  after  his 
death  to  go  equally  among  his  children  by  his  then  present  wife. 
At  the  date  of  the  will,  the  testator  had  no  brother  living  except 
Samuel  Parsons,  who  had  a  wife  and  children,  but  four  or  five  years 
before,  he  had  a  brother  named  Edward  Parsons,  though  he  and  his 
wife  were  dead  when  the  will  was  made,  and  other  legacies  were 
given  by  it  to  his  children.  The  testatpr  had  been  in  the  habit  of 
calling  his  brother  Samuel,  by  the  name  of. Edward  and  Ned.  The 
bill  was  filed  by-the  children  of  Samuel,  and  upon  these  circum- 
stances, which  were  proved  and  admitted,  the  only  question  was, 
whether  the  testator  intended  his  brother  Samuel,  when  he  named  bis 
brother  Edward.  And  the  Lord  Chancellor^  under  the  above  cir- 
cumstances, decreedj  without  argument,  an  account  according  to 
the  prayer  of  the  bill. 

Upon  the  principal  of  these  two  cases,  a  very  modern  authority 
seems  to  have  been  founded.  In  Careless  v.  Careless,(n)  the  testa- 
tor gave  500/.  "to  Robert  Careless  his  nephew.,  the  son  of  Joseph 
Careless."  The  testator  had  two  brothers  called  John  and  Thomas 
Careless,  eaeh  of  whom  had  a  son  named  Robert,  but  he  had  no 
brother  of  the  name  of  Joseph.  His  freehold  estate  he  devised,  if 
he  left  no  child,  to  his  brother  John,  and  2000Z.  stock  to  his  (the 
testator's)  wife  for  life ;  upon  whose  death  the  principal  was  to  be 
divided  into  two  parts,  one  of  which  was  to  be  in  trust  for  the  chil- 
dren of  his  brother  Thomas,  and  the  ot,her  for  the  children  of  his 
late  sister  Eliz  Hemmings.  He  then  devised  his  copyhold  and 
leasehold  estates  to  his  wife  for  life,  remainder-to  his  nephew  Robert 
Careless  in  tail,  remainder  to  his  brother  John,  his  heirs,  &c. ;  de- 
claring that  if  his  nephew  Robert  died  under  twenty-one  without 
leaving  issue,  the  leasehold  was  absolutely  to  go  to  his  brother  John 
Careless.  After  these  bequests,  the  testator  gave  his  bond  debts  to 
his  wife  for  life,  and  then  to  his  nephew  Robert  Careless,  "  the  son 
of  John  Careless,"  who  claimed  the  legacy  of  500L  in  which  he  was 

(ni)  1  Ves.  jun.  266.  (n)  1  Meriv.  384. 


SECT.  XVIII.]         Description  of  Legatees.  139- 

opposed  by  Robert,  the  son  of  Thomas.  The  first  named  Robert 
founded  his  claim  upon  intimacy  between  him  and  the  testator,  and 
his  being  treated  by  the  testator  with  the  greatest  affection ;  while 
the  second  named  Robert  lived  at  a  distance  from  the  testator,  and 
was  almost  unknown  to  him.  •  These  facts  were  established  in  evi- 
dence ;  and  Sir  W.  Grant,  M.  R.  after  declaring  the  admissibility  of 
the  evidence,  determined  in  favour  of  Robert  the  son  of  John. 

The  observation  of  Mr.  tfmbler  on  the  case  of  Bradwin  \.  Harpur, 
seems  applicable  to  the  last ;  for  when  the  latent  error  in  description 
was  made  apparent  by  the  evidence  of  the  state  of  the  testator's 
family,  the  manner  in  which  hd  disposed  of  his  property,  and  par- 
ticularly of  his  copyhold  and  leasehold  estates,  together  with  his 
bond  bebts,  appears  to  afford  sufficient  evidence  of  intention  that 
Robert,  the  son  of  John,  was  meant  and  that  the  description  of  him 
as  the  son  of  Joseph,  a,  nonentity,  was  a  mere  slip  of  the  pen. 

In  the  last  two  cases  the  evidence  of  the  state  of  the  testator's 
family,  when  applied  to  the  descriptions,  was  competent  to  raise  a 
latent  ambiguity  in  the  wills,  a  circumstance  necessary  to  be  attend- 
ed to  ;  for  if  facts  given  in  evidence,  instead  of  raising  an  ambiguity, 
be  consistent  with  the  description  in  a  will,  and  consequently  raise 
no  presumption  of  a  mistake  made  by  the  testator  in  particularizing 
the  legatee,  direct  evidence  of  his  having  committed  such  an  error 
cannot  be  received ;  for  if  such  were  not  the  rule,  -the  effect  would 
Be  to  revoke  part  of  a  written  instrument  by  parol,  a  result  forbid- 
den by  the  Statute-  of  Frauds.(o)  An  example  will  illustrate  these 
remarks : 

Suppose  a  legacy  were  given  by  Richard  Styles  "to  his  brother 
Thomas  Styles,  and  to  John  Styles,  his  brother's  son;"  and  the 
testator  had  other"  brothers,  each  of  whom  had  a  son  named  John 
Styles,  one  of  whom  claimed  the  legacy  bequeathed  to  John  Styles 
in  the  will,  as  the  person  intended  by  the  -testator,  upon  parol  decla- 
rations to  that  effect,  which  he  was  able  to  substantiate.  TJliat  evi- 
dence could  not  be  received  if  foilhded  upon  proof  of  no  other  facts, 
than  that  the  testator  had  other  brothers  besides  Thomas,  who  had 
each  a  son  named  John;  for  such  circumstances  being  quite  consis- 
tent with  the  will,  raise  no  ambiguity  in  it,  and  consequently  no  pre- 
sumption of  error  in  the  description ;  so  that  the  legal  construction 
of  the  devise  being  in  favour  of  John,  the  son  of  Thomas  Styles,  his 
title  must  prevail.  Such  in  effect  is  the  case  of  Doe  v.  Westlake.(p) 

But  supposing  a  latent  ambiguity'  to  be  well  raised, — 

4.  If  neither  the  will,  nor  extrinsic  evidence  is  sufficient  to  dis- 
pel the  ambiguity  arising  from  the  attempt  to  apply  the  description 
of  the  legatee  to  the  person  intended  by  the  testator,  the  legacy 
must  fail,  from  the  uncertainty  of  its  object.  Suppose,  then,  a 
legacy  to  be  given  iv  Jinn  James,  of  B.  in  the  parish  C.  by  the  de- 
scription of  "  grand-daughter"  of  the  testator,  when  in  fact  Ann  was 
his  great  grand-daughter,  and  neither  of  B.  nor  in  the  parish  of  C. 
but  Jane  James,  though  not  answering  in  name,  Was  the  testator's 
grand-daughter,  resident  at  B.  in  the  parish  of  C.;  now  unless  it 
were  in  proof  that  the  testator  mistook  the  name  of  Jinn  for  that 
of  Jane,  or  that  -he  mistook  the  description  of  Jinn,  the  bequest 

(o)  29  Char.  II.  c.  3.  (ft)  4  Bam.  &  Aid.  57. 


140  Description  of  Legatees.  [Cn.  II. 

would  be  void  for  uncertainty.  It  was  settled  in  the  case  next  stated, 
that  evidence  of  mistake  in  the  name  is  admissible  in  this  instance, 
and  it  was  the  opinion  of  Lord  Kenyan,  that  error  in  the  description 
might  also  have  been  shown  by  parol  declarations  of  the  testator,  if 
made  at  the  time  of  the  will ;  and  this  seems  very  reasonable  ;  for 
if  parol  evidence  be.  .admitted  to  raise  an  ambiguity,  and  correct  a 
mistake  alleged  to  exist  in  one  part  of  the  description,  it  seems  but 
fair  that  it  ought  to  be  received,  to  show  that  the  mistake  was  in  the 
other.  And  with  respect  to  the  rejection  of  parol  declarations  of  a 
testator,  because  they  were  not  made  at  the  date  of  the  will,  it  seems 
ta  be  now  settled,  that  all  conversations  and  declarations  of  testators, 
will  be  received  where  parol  evidence  is  admissible,  whether  made 
before,  at  the  time,  or  after  the  making  of  their  wills,  but  with  dif- 
ferent degrees  of  weight  and  credit.^)  The  following  case  is  pro- 
duced in  support  of  what  has  been  stated,  except  as  to  the  admission 
of  parol  declarations  of  testators  made  before  or  after  the  dates  of 
their  wills. 

In  Thomas  v.  Thoi)Kis,(r]  the  testator  devised  to  his  "grand- 
daughter, Mary  Thomas,  of  Llechtloyd,  in  Merthyr  parish,"  the  re- 
verson  of  his  house  in  Water-street,  in  the  borough  Caermarthen, 
At  the  time  of  his  death  he  had  a  grand-daughter  named  Elinor 
Evans,  (one  of  the  lessors  of  the  plaintiff)  who  lived  at  Llechlloyd, 
in  .Merthyr  parish,  and  a  great  grand-daughter,  named  Mary  Tho- 
mas (the  defendant)  who  was  the 'only  person  of  that  name  in  the 
family,  and  lived  at  Greencastle,  -in  the  parish -of  Llangain,  some 
miles  distant  from  Merthyr  parish ;  in  which  latter  parish  she  had 
never  been  during  her  life.  In  an  ejectment  tried  at  the  assizes  for 
Hereford,  the  plaintiff's  counsel  proposed,  and  was  permitted  to  give 
parol  evidence  of  a  mistake  in  the  name  of  the  devisee,  the  effect  of 
which  was,  that  when  the  drawer  of  the  will  read  it  over  to  the  de- 
visor, the  latter  observed,  there  was  a  mistake  in  the  name  of  the 
devisee.;  to  which  the  drawer  in  answer  said,  he  would  rectify  it;  and 
the  former  replied,  that  there  was  no  necessity,  since  the  place  of 
abode  and  parish  would  be  sufficient^  but  the  jury,  being  of  opinion 
that  there  was  no  such  mistake,  found  a  verdict  for  the  defendant  on 
the  first  count,  which  laid  the  demise  from  Elinor  Evans  and  her  hus- 
band. The  claim  of  Elinor,  as  the  intended  devisee,  being  disposed  of, 
the  question'  was  between  the  plaintiff  claiming  under  the  testator's 
co-heirs  and  Mary  Thomas,  as  the  supposed  devisee,  whose  counsel 
offered  evidence  of  declarations  made  by  the  devisor  prior  to  making 
his  will,  expressive  of  regard  for  his  great  grand-daughter,  the  de- 
fendant, and  of  his  intention  to  give  her  the  Star,  in  Water  street. 
This  evidence  was  rejected  upon  the  principle,  that  it  was  inadmis- 
sible to  show  whom  the  testator  meant,  as  that  intention  was  only  to 
be  collected  from  the  will. 

And  although  the  Court  of  King's  Bench  declared  that  the  evi- 
dence was  properly  rejected,  yet  it  did  not  do  so  on  the  ground  upon 
which  it  was  first  refused,  but  because  it  consisted  of  declarations 
by  the  devisor  long  before  the  date. of  his  will ;  Lord  Kenyon expres- 
ly  stating,  that  had  they  been  made  at  the  time  of  the  will,  he  should 

(?)  Per  Lord  Eldon,  in  Trimmer  v.  £aync,7~Ves.  508.  and  see  ante,  p.  137. 
(r)  6  Term  Rep.  671. 


SECT.  XVIII.]       Description  of  Legatees.  141 

have  thought  them  admissible  in  evidence  as  was  noticed  in  the  in- 
troductory observations  to  the  case.(s)  The  decision  of  the  Court, 
therefore,  rested  upon  the  sufficiency  of  the  will  to  remove  the  am- 
biguity which  had  been  raised  by  extrinsic  evidence  of  the  circum- 
stances of  the  testator's  family;  but  as  the  context  was  unable  to 
dispel  the  obscurity,  and  parol  evidence,  which  might  have  had  the 
effect,  was  rejected  on  account  of  its  not  being 'con  temporary  with 
the  will,  the  Court  was  under  the  necessity  of  declaring  the « devise 
to  be  void  for  uncertainty,  Lord  Kenyon  justly  observing,  that  as 
Mary  Thomas,  the  person  named,  was  neither  grand-daughter  of 
the  devisor,  nor  resided  in  the  place  and  parish  described,  but  Elinor 
Evans,  who  was  not  naYned,  was  the  testator's  grand-daughter,  and 
lived  in  the  place  and  parish  mentioned  in  the  will,  certainty  as  to 
the  person  of  the  devisee  could  not  be  attained,  and  consequently 
the  heir  of  the  devisor  was  entitled. 

The  last  Case,  therefore,  does  not  appear  to  be'  an  authority  that 
parol  evidence  is  inadmissible  to  ascertain  the  person  of  the  devisee, 
when  a  correct  name  is  followed  by  'a  false  description,  applicable 
to  another  person  pf  the  family,  but  of  a  different  narrfe. 

It  is,  however,  an  instance  of  latent  ambiguity  in  a  will,  raised  by 
extrinsic  evidence,  introducing  such  a  degree  of  uncertainty  in  the 
testator's  intention,  as  to  disappoint  the  devise,  in  consequence  of 
the  will  and  the  evidence  being  insufficient  to  ascertain  the  intend- 
ed object  of  his  bounty.  But, — 

5.  When  the  parol  evidence  is  sufficient' to  raise  a  latent  ambi- 
guity in  the  description  of  the  legatees,  which,  without  its  production, 
would  have  entitled  them  to  the  money  as  answering,  the  terms  of 
the  bequest;  in  such  a  case^as  the  existence  of  any  mistake  is  pro- 
blematical, unless  the  evidence  clearly  show  error  in  the  description, 
and  that  other  persons  were  meant  by  the  test-ator  instead  of  those 
described,  it  will  be  insufficient  to  substitute  the  claimants  in  the 
places  of  those  answering  the  description.  '  And  that  such  evidence 
is  admissible,  appears  from  the  two  cases  after  stated.(J)  Suppose, 
then,  a  bequest  to  be  made  to  the  children  of  a  particular  .person  by 
his  baptismal  name,  but  which  he  had  changed  prior  to  the  date  of 
the  will ;  or  to  the  children  of  a  person  as  in  existence,  who  happen- 
ed to  be  then  dead;  although  parol  testimony  be  admissible  to  show 
those  facts,  yet  as  they  may  have  been  unknown  to  the  testator,  and 
therefore  afford  no  clear  evidence  of  his  intention  to  benefit  the 
children  of  any  other  person  than  of  him  described,  evidence  of  mis- 
take in  the  testator  in  describing  the  parent  of  the  legatees  so  as  to 
entitle  children  of  another  person  riot  mentioned  on  the  ground  that 
his  name  was  intended  instead  of  that  inserted  in  the  will,  must  be 
strong  and  relevant,  or  the  children  .of  the  person  described  will  be 
entitled  to  the  legacy. 

Accordingly  in  Delmare\.  Robello,(u]  a  testator  bequeathed  the 
interest  of  his  residuary  estate  in  trust  for  all  the  children  of  his  two 
sisters  Reyne  and  Estrilla.  Reyne  was  never  married,  and  prior  to 
the  will  she  became  a  convert  from  the  Jewish  to  the  Roman  Ca- 

(&}  See  preceding  .page. 

(t)  Also  see  Sir  John  Strange's  observations.  2  Ves.  sen.  217. 

(«)  3  Bro.  C.  C.  446.     1  Ves.  jun.  412.  S.  C. 


142  Description  of  Legatees.  [Cn.  II. 

tholic  religion,  also  a  professed  nun,  was  baptized  by  the  name -of 
Maria,  and  lived  at  Genoa.  In  addition  to  Reyne  and  Estrilla,  the 
testator  had  another  sister  named  Rebecca,  and  both  she  and  Estrilla 
were  married,  and  resided  at  Leghoi'n.  Rebecca  had  several  chil- 
dren who  claimed  by  the  will  the  interest  bequeathed  to  the  children 
of  Reyne,  upon  the  ground  that  the  latter  name  was  inserted  by  mis- 
take for  that  of  Rebecca.  And"  iri  support  of  the  claim  they  offered 
parol  evidence  of  the  circumstances  of  the  family,  as  also  of  decla- 
rations by  the  testator  that  he  intended  to  provide  for  the  children 
of  his  sisters  at  Leghorn.  The  introduction  of  this  evidence'  was 
resisted,  yet  Lord  Thurloiv,  not  only  permitted  if  to  be  read,  but 
pronounced  his  decree  upon  the  effect  of  it',  declaring  that  in  his 
opinion  it  was  not  sufficient  to  induce  him  to  presume  that  the  tes- 
tator meant  his  sister  Rebecca  instead  of  Reyne,(x)  for  the  expres- 
sions in  the  will  were  so  large  as  to  induce  a  belief  that  the  testator 
did  not  regard  the  circumstance  of  his  two  sisters  then  having  chil- 
dren or  not,  but  that  he  intended  to  include  all  the  children  they 
might  possibly  have.  He  (the  testator)  took  no  notice  of  the  situa- 
tion of  the  two  sisters  at  Leghorn,  nor  of  that  of  the  other,  and  his 
Lordship  said  he  was  not  satisfied,  that  if  the  testator  knew  he  had  a 
sister  named  Rebecca  at  Leghorn  with  children,  he  meant  to  provide 
for  them ;  for  if  so  he  would  have  rimmed  her  by  her  right  name,  his 
knowledge  of  which  was  not  doubted.  It  was  upon  such  reasoning 
that  his  Lordship  pronounced  on  the  insufficiency  of  the  parol  evi- 
dence. 

The  last  case  was  followed  by  Holmes  \.  Custance.(y)  There  the 
testator  gave  "  to  the  children  of  Robert  Holmes  late  of  Norivich, 
and  now  of  London,  the  sum  of  100f..a  piece."  The  legacies  were 
claimed  by  James  the  surviving  child  of  Robert  Holmes,- but  which 
was  resisted 'under  the  following  circumstances  that  were  proved  in 
the  cause;  The  testator -had  two  relations  named  Robert  and  George 
Holmes.  The  former  died  in  London,  previously  to  the  date  of  the 
will,  leaving"  the  plaintiff  his  only  child,  another,  whom  he  had,  hav- 
ing died  in  infancy.  Robert  left  Norwich  for  London  at  an  early 
age,  in  which  latter  place  he  resided  until  his  death.  George  Holmes, 
the  other  relative,  formerly  lived  at  Norttrich,  but  resided  in  London 
when  the  testator  died.  He  had  several  children ;  some  of  whom 
lived  at  Norwich,  and  were  in  habits  of  intimacy 'with  the  testator. 
The  children  of  George,  therefore,  claimed  the  legacies  given  to  the 
children  of  Robert  Holmes,  insisting  that  the  name  of  Robert  was  'in- 
serted by  mistake  instead  of  the  name  of  George ;  But  Sir  W.  Grant 
was  of  opinion  that  the  evidence  was"  insufficient  to  authorize  him  to 
vary  the  description  in  the  will,  and^  remarked  that  if  the  present  had 
not  been  a  case  of  competition^  but  the  executor  had  taken  the  ob- 
jection, the  name  of  Robert  Holmes  being  found,  in  the  will,  very 
strong  evidence  would  be  necessary.  His  Honour  then  proceeded  to 
comment  upon  the  evidence  as  follows :  "  As  to  the  mistake  of  the 
name,- what  I  am  to  collect  is,  either,  if  the  testator  himself  wrote.tlte 
will,  that  he  wrote  the  name  "Robert"  by  mistake  when  he  meant 
"  George;"  or,  that  if  another  person  wrote  the  will,  that  person  by 
misapprehension  of  the  testator's  instructions  wrote  the  name  of 

(*)  3  Bro.  C.  C.  451.        .  (i/)  12  Vcs.  279. 


SECT.  XVIII.  ]       Description. of  Legatees.  143 

"Robert",  for  "  George.'1''  Then,  considering  it  as  a  case  of  compe- 
tition, none  of  these  circumstances  will  do.  First,  as  to  the  descrip- 
tion, "  late  of  Norwich"  not  answering  to  Robert,  who  had  not  re- 
sided there  for  many  years,  every  one  knows,  the  sense  of  "  late"  is, 
not  recently,  but  formerly,  of  Norwich.  Then,  as  to  the  circum- 
stance, that  he  .was  not  jiving  at  the  date  of  the  will;  he  was  at  a 
distance,  and  the  testator  might  not  have  known  of  his  death,  or 
might  have  forgotten  it.  As  to  his  haying  left  only  one  child,  the 
legacy. being  given  to  "  the  children, ".the  testator  living  at  a  dis- 
tance, might  not  have  known  the  state  of  h'is  family,  and  meant  only, 
that  if  he  had  children,  they  should  have  the  legacies.  In  the  case 
Delmare  v.  Robello,(a)  the  evidence  was  very  strong,  .amounting  to 
a  high  degree  of  probability,  that  the  testator  intended  his  sister  Re- 
becca; yet  Lord  Thurlow  would  not  venture  so  to  decide.  I  can- 
not, thetefore,  vary  the  will  upon  this  evidence." 

The  two  last  cases  are  authorities  far  the  admission  of  parol  evi- 
dence to  raise  a  latent  ambiguity,  and  then  to  show  error  in  descrip- 
tion under  circumstances  where  there  were  persons  literally  answer- 
ing the  terms  of  the  bequests.  They  are  instances  of  facts  produced, 
.which,  when  compared  with  the  wills,  raised 'presumptions  of  proble- 
matical mistakes  ;  i.e.  of  tlje.  possibility  of  the  testator's  having  been 
mistaken  in  describing  the  legatees ;  an  ambiguity  of  the  slightest 
kind,  yet  sufficient  on  general  principle. to  authorize  the  admission 
of  verbal  testimony  to  show  in  what  particulars  the  errors  consisted, 
and  to  rectify  them.  ' 

Another  class  of  cases  falling  under  the  head  of  problematical 
errors,  inferred  from  the  state  of  the  testator's  family  compared  with 
the  description  in  the  will,  and  presumed  in  order  to  support  the 
legacies,  although  probably  no  mistakes  were  in  reality  committed, 
is,  when  bequests  are-made  to  a  part  only  of  a  class  of  persons  an- 
swering the  same  description,  but  the  will  does  not  distinguish  the 
particular  objects  of  the  testator's  bounty. 

It  is  settled,  that  if  a  testator  bequeath  to  part  only  of  a  number  of 
individuals  of  the  same  description,  and  none  of  them  are  named  nor 
can  be  identified,  either  by  the  will  or  by  extrinsic  evidence,  it  is  to 
be  presumed  that  he  intended  the  whole  class  of  persons,  and  was 
mistaken  in  the  number  when  confining  his  bounty  to  three  or  four 
of  the  class  by  the  insertion  of  those  words.  These  restrictive  ex- 
pressions are  therefore  rejected,  and  the  entire  number  of  individuals 
answering  the  description  are  admitted  as  legatees.  Suppose,  then, 
a  legacy  was  given  to  the  three  children  of  »#.,  and  ^2.  hud  four  chil- 
dren at  the  time  of  the  will ;  the  word  "  three"  would  '-be  rejected 
upon  the  presumption  of  mistake,  and  the  four  children  of  A.  would 
divide  the  legacy  among  them.  Such  a  presumption  is  doubtless 
unsatisfactory,  and  nothing  but  necessity  can  warrant  it.  That  ne- 
cessity is,  to  give  effect  to  the  bequest;  for  if  all  the  children  were 
not  supposed  to  be  intended,  the  legacy  would  be  void  from  the  im- 
possibility of  discovering  which  of  them  were  intended  by  the  de- 
scription of  three  children,  there  being  four. 

In  Tomkins  v.  Tomkins,(b)  the  testator,  after  giving  to  his  sister 
20L  bequeathed  ."  to  hGr.three  children  501.  a  piece."  The  sister  had 

(a)  See  preceding  page.  (6)  19  Ves.  126,  in  notes. 


144  Description  of  Legatees.  [Cn.  II. 

four  children;  and  each  of  the  four  was  declared  to  be  entitled  to 
a  legacy  ni'  ")OZ. 

That  case  was  followed  by  Lord  Kenyon  in  Stebbing  v.  Walkley.(b) 
The  bequest  was  of  S21.  three  per  cent  annuities,  in  trust  for  the  two 
daughters  of  Titus  Stebbing,  in  equal  shares,  for  so  much  of  the 
term  therein  as  they  should  live;  and  if  either  died  before  the  end 
of  the  term,  the  whole  was  to  belong  to  the  survivor;  but  if  both 
died  before  that  time,  the  legacy  was  to  fall  into  the  residue.  Mr. 
Stebbing  had  three  daughters  at  the  date  of  the  will;  and  his  Lord- 
ship determined  that  the  three  were  equally  entitled. 

The  first  of  the  fvvo  last  cases  was  the  authority  upon  which  Sir 
H .  Grant,  M.  R.  pronounced  his  decree  in  Garvey  v.  Hibbert.(c) 
There  Mr.  Mauduit  bequeathed  to  the  "  three  children  of  Deborah 
Duval,  wife  of  Dr.  B.  Duval,  600Z."  Mrs.  Duval  had/owr  children 
when  the  will  was  made,  and  the  legacy  was  decreed  to  the  four. 
His  Honour  remarked,  that  the  ground  upon  which. the  Coort  had 
proceeded,  was,  that  it  was  a  mere  slip  in  expression;  the  meaning 
was,  all  children,  or  all  servants;  and  the  .Court,  conceiving  the  in- 
tention to-  be  to  give  to  each  child  so  much,  strikes  out  the  specified 
number.  , 

An  instance  of  the  Court  having  acted  upon  this  presumption  on 
a  bequest  to  servants,  occurred  in  Sleech  v.  Thorington.(d)  In  that 
case  the  testator  bequeathed  to  the  two  servants  who  should  be  living 
with  her  at  her  death  1001.  new  South  Sea  stock,  in  equal  shares. 
The  testatrix  Jhad  two  servants  in  her  employ  when  she  made  her 
will,  and  afterwards  took  another,  who  was  in  her  service  at  the 
period  of  her  death.  And  Sir  Thomas  Clarke,  M.  R.  determined, 
that  the  third servant . was  entitled  with  the  other  two,  upon  the 
ground,  that  whatever  was  the  number  of  servants  living  with  the. 
testatrix  at  her  decease,  she  meant  that  the  whole  should  participate 
in  the  bequest. 

The  principle  upon  which  the  last  case  was  decided  applies  to 
that  next  stated.  Neither  of  them  -is  so  strong  as  the  preceding 
authorities  against  the  presumption  of  mistake  in  the  testators;  for 
the  expressions  in  the  two  wills  showed  the  intent  to  comprehend 
all  the  persons  answering  the  descriptions,  so  as  to  authorize  a  re- 
jection of  the  restrictive  words  as  repugnant. 

In  Scott  \.Fenoulhett, (e)  the  testator  bequeathed  to  CaptainComp- 
ton  5001.  and  the  like  sum  to  each  of  his  daughters,  if  both  or.  either 
of  them  survived  Lady  Chadwick;  an  event  which  happened.  The 
captain  had  three  daughters  at  the  date  of  the  will ;  and  first  Lord 
Bathurst,  and  secondly,  Lord  Thurlow,  determined  that  the  three 
daughters  were  entitled. 

In  all  these  cases,  evidence  dehors  the  will  of  the  state  of  the  fami- 
lies of  the  legatees- was  necessarily  admitted,  and"  from  which  sprung 
the  uncertainty  in  regard  to  the  particular  persons  intended  by  the 
testators,  who,  in  bequeathing  to  a  specific  number  of  a  class  of  in- 
dividuals, omitted  to  distinguish  the  select  objects  of  their  bounty 
from  the  rest.  If  then  the  Court  had  not  in  the  preceding  cases. re- 
jected the  restrictive  words,  and  let  in  all  the  persons  in  each  de- 

(i)  2  Bro.  C.  C.  85,  ed.  by  Self,  and  stated  as  corrected  by  him  from  Reg.  Lib. 
(c)  19  Ves.  125.  •   (rf)  2  Yes.  sen.  561.  (e>)  1  Cox,  79. 


SECT.  XVIII.]       Description  of  Legatees,  145 

script  chuss,  the  legacies  must  have  been  void  for  uncertainty ;  for 
no  evidence  was  offered  of  intention  in  favour  of  any  of  .the  indivi- 
duals in  preference  to  the  others. 

That  such  evidence  would  have  been  admissible,  will  appear  on 
reference  to  the  cases  in  this  and  the  two  preceding  sections.  It  is 
true  that  the  decree  in  Dowset  v.  Sweet,(fJ  as  to  this  point,  seems 
to  the  contrary ;  but  that  decision  has  been  always  considered  of  no 
authority.  The  testator  gave  "  to  the  son  and  daughter  of  W. 
Wicker"  a  legacy  of  100Z.  Wicker  had/owr  sens  and  one  daughter; 
and  upon  a  question  as  to  which  of  his  sons  was  entitled,  it  was  de- 
termined that  none  of  them  should  take  the  legacy  in  consequence 
of  the  uncertainty  of  description,  but  that  the  daughter  should  re- 
ceive the  whole. 

Upon  this  decision  Lord  Thurlow  made  the  following  remarks : 
"  It  is  almost  impossible  to  say,  that  if  there  be  a  bequest  to  the  son 
and  daughter  of  one,  who  at  the  time  of  the  bequest  has  four  sons 
and  a  daughter,  there  is  not  such  a  dissonance  between  the  state  of 
the  facts  and  of  the  bequest  as  to  let  in  satisfactory  evidence  that  one 
son  was  meant,  as  it  is  clear  that  he  meant  one.  It  is  within  all  the 
rules  of  latent  ambiguity.  I  suppose,  therefore,  that  the  case  of  Dow- 
set  v.  Sweet  went  upon  the  ground,  that  the  evidence  was  not  suffi- 
cient to  show  the  intention,  and  then  it  became  uncertain." 

Whether  the  defect  in  the  evidence  ought  to  have  produced  a  de- 
cree against  the  sons,  as  supposed  by  Lord  Thurlow,  is  open  to  these 
observation!*:  that  there  seems  as  much  reason  to  presume  the  tes- 
tator or  transcriber  of  the  will  to  have  made  a  slip  in  writing  the 
word  son  for  sons,  as  that  the  testators,  in  the  preceding  cases,  were 
mistaken  in  the  'number  of  legatees.  The  state  of  Wicker's  family 
when  compared  with  the  description  in  the  will,  cannot  fail  to  strike 
every  reader,  of  the  great  probability  that  all  his  sons  were  intended 
to  be  included  by  the  testator,  and  that  the  omission  of  the  letter  s 
to  son,  was  a  mere  clerical  mistake.  The  will  itself  seems  to 'be 
sufficient  to  correct  it ;  for  where  a  man  has  sons  and  one  daughter, 
and  a  bequest  is  made  to  his  "  son  and  daughter,"  the  intention  of 
the  testator  to  provide  for  all  the  sons,  as  well  as  the  only  daughter, 
is  so  apparent,  as  to  convince  every  person  of  common  intellect, 
that  the  omission  of  the  letter  s  to  "  son,"  was  a  mere  slip  of  the  pen. 
The  case  is  quite  different  from  that  of  a  legacy  to  one  of  the  sons 
of  a  particular  person,  who  had  many ;  for  there  the  ambiguity  is 
patent,  upon  the  will,  and  only  one  of  the  sons  was  intended,  who 
not  being  designated,  and  evidence  to  ascertain  him  being  inadmis- 
sible^the  bequest  is  necessarily  Void,  for  uncertainty,  (g) 

That  evidence  is  admissible  to  ascertain  what  particular  persons 
were  intended  under  the  bequest  to  the  three  children  of  A.  when 
A.  had  four  or  more,  the  following  is  an  authority  : 

In  Hampshire  v.  Peirce,(h)  the  testatrix  bequeathed  1 OOJ.  "  to  the 
four  children  of  her  late  cousin  Eliz.  Bamfield;"  who  at  the  date 
of  the  will,  had  two  children  by  a  former  husband,  and  four  by  a 
second  ;  all  of  whom  survived  her.  Upon  a  question  whether  parol 
evidence  was  admissible  to  show  that  the  testatrix  meant  the  four 

(/)  Ambl.  175.  (£)  2Vern,  624.  (A)  2Ves.  sen.  216. 

VOL.   I.  T 


146  Description  of  Legatees.  [Ca.  II. 

children  of  Mrs.  Bamfield  by  a  second  husband  7  Sir  John  Strange, 
M.  11.  decided  in  the  affirmative  ;  because  the  evidence  which  re- 
moved the  latent  ambiguity  raised  by  the  introduction  of  the  state 
of  Mrs.  Bamfield's  family,  did  not  contradict  the  will,  but  merely 
determined  which  four  of  the  children  were  intended  by  the  testa- 
tor, and  he  determined  uj^on  the  evidence  in  favour  of  the  four  chil- 
dren of  Mrs.  Bamfield,  by  her  second  husband. 

But  when  the  effect  of  parol  evidence  would  be,  to  contradict  the 
will,  it  cannot  be  received  in  the  face  of  the  Statute  of  Frauds. 

Accordingly,  in  the  'same  case  of  Hampshire  v.  Peirce.  the  testa- 
trix gave  "  to  the  children  of  her  late  cousin,  Eliz.  Bamfield,  300/." 
Evidence  was  tendered  to  show,  that  she  meant  the  four  children 
which  Eliz.  had  by  her  second  husband,  in  exclusion  of  the  two  by 
her  first ;  although  they  were  included  under  the  description  in  the 
will.  But  Sir  John  Strange,  M.  R.  rejected  the  evidence  for  the 
reason  before  mentioned,  and  declared  that  all  the  children  of  Eliz. 
were  entitled. 

Having  in  the  two  preceding  sections,  traced  the  consequences 
of  errors  in  the  names  and  descriptions  of  legatees,  which  were  dis- 
covered upon  the  production  of  extrinsic  evidence,  we  shall  lastly 
consider — 

SECT.  XIX.     The  Consequences  of  IMPERFECT  Descriptions 
of,  or  reference  to  Legatees  appearing  UPON  THE  FACE  OF 
WILLS,  and  when  PAIJOL  Evidence  is  admissible. 
Instances  of  imperfect  descriptions  of,  or  references  to  legatees 
appearing  upon  the  face  of  wills  may  occur  :  1.  When  a  blank  is 
left  for  the  Christian  name  of  a  legatee ;  or,  2.  where  the  whole 
name  is  omitted ;  or,  3,  When  the  testator  has  merely  written  the 
initials  of  the  name  ;  or  4,  when  legatees  hav§  been  once  accurate- 
ly described,  but  in  a  subsequent  reference  to  one  of  them,  to  take 
an  additional  bounty,  the  person  intended  is  doubtful,  from  ambigu- 
ity in  the  terms. 

For  the  sake  of  perspicuity,  it  is  proposed  to  consider  each  of  the 
before-mentioned  subjects  in  regular  order ;  first  premising  that  it 
is  a  general  rule  that  parol  evidence  is  admissible  upon  latent  ambi- 
guities, and  not  upon  ambiguities  which  are  patent,  i.  e.  such  as 
are  apparent  upon  the  will  itself.  That  this  distinction  is  attended 
with  minute  nicety  of  discrimination  in  some  instances,  will  appear 
from  cases  afterwards  produced.  If,  when  upon  opening  wills,  such 
bequests  are  found,  as  "  to  Jones,  the  son  of  Jones ;"  or  "  to 
Mrs.  B."  and  parol  evidence  is-  admitted  to  ascertain  the  persons 
intended  by  those  ambiguous  terms,  it  would  seem  a  vain  attempt 
to  justify  that  admission  upon  the  doctrine  of  latent  ambiguity, 
when  the  ambiguity  is  patent  upon  the  will.  The  principle  upon 
which  parol  testimony  is  admitted  in  those  cases,  is  probably,  in  the 
first  of  them,  a  presumption  of  possible  ignorance  in  the  testator  of 
the  Christian  name  of  the  legatee,  and  in  the  second,  a  similar  pre- 
sumption of  his  being  in  the  habit  of  calling  the  person  by  the  name 
of  Mrs.  B.  Presumptions,  which  being  raised  upon  the  face  of  the 
will,  may  be  confirmed  and  explained  by  extrinsic  evidence.  Upon 
these  grounds  the  admission  of  parol  evidence  in  those  two  instan- 
ces, will  be  cpnsistent  with  the  established  doctrine  of  its  admissi- 


SECT.  XIX.]          Description  of  Legatees.  147 

bility,  to  raise  and  remove  latent  ambiguities  (of  which  examples 
have  been  before  given ;)  and  of  its  not  being  admissible  when  of- 
fered to  explain  a  patent  ambiguity  in  the  will,  of  which  the  Court 
of  King's  Bench  proposed  an  instance  in  Edward  AUham's  case  :(i) 
"  If  A.  by  deed,  give  goods  to  one  of  the  sons  of  /.  S.  who  has  seve- 
ral sons ;  he  shall  not  aver  which  son  he  intended ;  for  by  judg- 
ment in  law  upon  this  deed,  the  gift  is  void  for  the  uncertainty, 
which  cannot  be  supplied  by  averment."  And  there  is  no  differ- 
ence between  a  deed  and  a  will,  as  to  this  matter.(A:)  We  shall 
now  proceed  to  consider — 

1.  When  a  blank  is  left  for  the  Christian  name  of  the  legatee. 
That  parol   evidence  is  admissible  to  supply  an  omission  of  the 

Christian  name  of  a  legatee,  is  proved  by  the  case  of  Price  v.  Page,(l) 
in  which  the  testator  bequeathed  "  to  Price,  the  son  of  Price, 
the  sum  of  100Z."  No  person  but  the  plaintiff  claimed  the  legacy, 
and  he  produced  evidence  from  which  it  appeared,  that  he  was  the 
son  of  a  niece  of  the  testator  ;  that  his  father's  and  grandfather's 
names  were  Price,  that  the  testator  had  no  other  relation  of  that 
name,  that  he  lived  on  terms  of  affection  with  the  plaintiff,  contri- 
buted to  his  maintenance,  placed  him  with  an  attorney,  and  paid  the 
duty  on  that  occasion,  and  that  the  testator  said  he  had  or  would 
provide  for  the  plaintiff,  and  that  he  had  left  him  something  by  his 
will.  Upon  this  evidence,  Lord  Alvanley  determined  in  favour  of 
the  claim.  But- — 

2.  When  the  omission  consists  of  the  entire  name  of  the  legatee, 
parol  evidence  cannot  be  admitted  to  supply  the  blank,  for  that 
would  amount  to  a  bequest  by  oral  testimony. 

Thus  in  Winne  v.  lAttleton,(m)  A,  bequeathed  all  his  personal 
estate  to  his  executor,  leaving  a  blank,  and  died  without  naming  any 
person  executor.  The  legacy  was  adjudged  to  be  void. 

So  in  Baylis  v.  The  Attorney  General,(n]  the  testator  gave  200J. 
to  the  ward  of  Bread-street,  according  to  Mr.  his  will.  Lord 

Hardwicke  would  not  allow  the  blank  to  be  supplied  by  parol  evi- 
dence. 

And  in  Hunt  v.  Hort,(ci]  a  woman  devised  her  houses  in  town  and 
at  Richmond  to  her  niece,  Dame  Margaret  Ilort,  and  Richard  Baker, 
her  attorney,  in  trust  to  sell.  She  then  gave  some  pictures  specifi- 
cally, and  thus  proceeded :  my  other  pictures  to  become  the  pro- 
perty of  Lady  (leaving  a  blank  after  the  word  lady.)  The 
testatrix  then  made  her  niece,  Harriet  Hunt,  residuary  legatee,  and 
appointed  Lady  Hort  and  Richard  Baker  her  executors.  Lord 
Thurlow  was  of  opinion  that  he  could  not  supply  the  blank  by  parol 
evidence,  and  observed,  that  where  there  was  only  a  title  given,  it 
was  the  same  as  a  total  blank. 

3.  If,  however,  a  legatee  be  described  by  initials  of  his  name  only, 
parol  evidence  may  be  given  to  prove  his  identity. 

This  was  done  in  the  case  of  Abbot  v.  Massie,(p]  where  the  be- 
quest was,  "Pint  silver  mug,  and -all  my  china,  to  Mrs.  G.  and  101. 
for  mourning,"  Mrs.  Gregg  claimed  the  legacies,  and,  the  Master 
having  refused  testimony,  offered  to  show  that  she  was  the  person 

(0  8  Rep.  155.  a,        X*')  2  Ve™-  624-        CO  4  Ves.  680.        (m)  2  Ch.  Ca.  51. 
(«)  2  Atk.  239.  (o)  3  Bro.  C.  C.  311,  (/O  3  Ves.  148.    - 


148  Description  of  Legatees.  [Cn.  II. 

intended;  exception  was  taken  to  his  report.  Upon  which  the  Court 
declared,  that  he  ought  to  receive  evidence,  but  legal  evidence,  to 
prove  who  Mrs.  G.  was. 

4.  And  with  respect  to  a  patent  ambiguity  arising  from  an  im- 
perfect reference  to  one  of  two  legatees  correctly  described  in  a 
prior  part  of  the  will,  parol  evidence  is  inadmissible  to  show  which 
of  them  was  intended,  so  that  the  additional  legacy  intended  for  the 
one  will  depend  upon  the  removal  of  the  obscurity  by  a  sound  in- 
terpretation of  the  whole  will. 

An  instance  of  this  kind  occurred  in  a  case  of  Castledon  v.  Tur- 
ner.(q)  The  testator  gave  his  real  estates  to  his  wife  Alicia,  for  life, 
remainder  to  M.  Dinton,-mece  to  his  said  wife.  Item,  he  gave  "  the 
use  of  500Z.  stock,  for  and  during  her  life,  but  after  her  death,  he 
gave  the  500/.  among  the  brothers  and  sisters  of  the  said  wife." 
The  question  was,  whether  by  the  relative  word,  her,  the  niece -or 
the  wife  was  intended  *?  And  it  seems  that  parol  evidence  was  of- 
fered of  the  testator's  intention,(r)  but  Lord  Hardwicke,  after  reject- 
ing that  testimony,  determined  in  favour  of  the  wife,  upon  a  sound 
and  grammatical  construction  of  the  will. 

The  last  oase  was  followed  by  Fox  v.  Collinses)  but  differing 
from  it  in  this  particular,  that  no  parol  evidence  was  offered,  and  if 
any  had  been  tendered,  the  case  just  stated  would  have  been  an 
authority  for  rejecting  it.  In  Fox  v.  Collins  the  testator  first  pro- 
vided for  Sidney  Collins,  the  second  daughter  of  his  deceased  uncle, 
Thomas  Collins,  late  of  Huntingdon.  He  next  made  provision  for 
the  son  of  his  said  uncle  Thomas,  and  then  gave  a  legacy  to  the  de- 
fendant, Ann  Collins,  of  St.  Ives,  a  daughter  of  his  uncle  Thomas  ; 
and  also  a  legacy  to  Edward  Collins,  a  grandson  of  Thomas  ;  but  if 
Edward  died'before  the  testator,  the  legacy  was  to  go  to  his  children, 
if  he  left  any  :  and  if  there  were  none,  the  money  was  to  be  applied 
as  part  of  the  testator's  residuary  estate.  The  next  objects  of  the 
testator's  bounty  were  the  descendants  of  his  deceased  uncle,  Robert 
Collins,  one  of  whom  was  riamed  Ann  Collins,  and  resident  at  Brom- 
yard  in  Huntingdon,  and  was  so  described.  The  testator,  after  giv- 
ing some  legacies,  bequeathed  his  residuary  personal  estate,  "  to  the 
said  Sidney  Collins,  Ann  Collins  and  Sarah  Collins,  in  equal  shares. 
The  question  was,  which  of  the  two  Ann  Collins  was  meant  by  the 
testator  9  And  Lord  Northington  determined  in  favour  of  Ann  Col- 
lins of  St.  Ives,  the  daughter  of  Thomas,  the  uncle.  1st,  Because 
the  descendants  of  Thomas  appeared  to  be  the  primary  objects  of 
the  testator's  bounty,  and  as  such  first  named  in  the  will ;  and  the 
direction  for  the  legacy  to  Edward  (grandson  of  Thomas)  to  fall 
into  the  residue  upon  the  contingencies  before  mentioned,  appeared 
to  his  Lordship  material  evidence  of  the  testator's  intention,  that 
the  residue  should  be  divided  among  the  descendants  of  Thomas. 
And,  2dly,  because,  in  addition  to  those  circumstances,  the  name 
"  Ann  Collins"  in  the  residuary  clause  was  placed  between  two  of 
the  descendants  of  Thomas,  whence  his  Lordship  was  satisfied  upon 
what  appeared  in  the  will,  that  Ann  Collins,  the  daughter  of  Thomas, 
was  the  person  designated  by  the  description  of  "  Ann  Collins." 

(?)  3  Atk.  257.  (r)  2  Ves.  sen.  217.  » '        («)  2  Eden.  107. 


SECT.  I.]  Specific  Legacies.  149 

CHAPTER  III. 

Of  Specific  Legacies. 

IT  is  proposed  to  consider  in  this  Chapter,  What  are  and  what  are 
not  Specific  Bequests  of  personal  property.  The  subject  will  be 
discussed  under  the  following  arrangement : 

SECT,  I.       What  are  Specific  Legacies,  and  the  privileges 

and  disadvantages  attending  them. 

SECT.  II.     Specific  Legacies  of  individual  personal  chattels. 
SECT..  III.   Specific  Legacies  of,  and  relating  to  real  chat- 
.    tels  and  estates. 
1 . — Of  real  chattels. 
2. — Of  rents  and  annuities  out  of  real  chattels  and 

estates. 

3. — Of  gross  sums  of  money  out  of  them — and 
4 . — Of  the  produce  from  their  sales. 
SECT.  IV.  Specific  Legacies  of  sums  of  money  and  personal 

annuities. 
l.-i-O/"  money.      . 
2. — Of  annuities. 
SECT.  V.     Specific  Legacies  of  stock  or  annuities  in  public 

funds. 

I . — Effect  of  "  my"  preceding  tJie  word  "  stock." 
2. — Bequests  of  stock  generally. 
3. — Construction  when  stock  is  bequeathed  generally 

in  a  particular  fund. . 
4. —  -  -  -  when  expressly  out  of  particular  stock. 

5. when  not  expressly  out  of  stock,  but  stock 

is  mentioned  as  thefunain  which  the  money  be- 
queathed is,  or  is  supposed  to  be  invested. 
SECT.  VI.     Colonial  property. 

Legacies  of,  when  and  when  not  specific. 
SECT.  VII.  Legacies  of  debts. 
1. — When  specific. 
2. — When  not. 

SECT.  VIII.  Bequests  of  general  personal  estate. 
1. — When  specific. 
2.'- — When  not. 


SECT.  I.  What  are  SPECIFIC  LEGACIES,  and  of  the  privileges 
and  disadvantages  attending  them. 

A  regular  specific  legacy  may  be  defined,  "  the  bequest  of  a  par- 
ticular thing  or  money  specified  and  distinguished  from  all  others  of 
the  same  kind,  as  of  a  horse,  a  piece  of  plate,  money  in  a  purse, 
stock  in  the  public  funds,  a  security  for  money,  which  would  im- 
mediately vest  with  the  assent  of  the  executor."  It  differs  from  a 


150  Specific  Legacies.  [CH.  III. 

general  or  *  pecuniary  legacy  in  this  respect,  that  if  there  be  a  de- 
ficiency of  assets,  the  specific  legacy  will  not  be  liable  to  abate 
with  the  general  legacies  ;  and  on  the  other  hand,  if  such  specific 
legacy  be.  disappointed,  as  by  failure  of  the  specific  fund,  the  legatee 
will  not  be  entitled  to  any  recompense  or  .satisfaction  out  of  the  per- 
sonal estate  of  the  testator. (a) 

But  there  are  legacies  of  quantity  in  the  nature  of  specific  lega- 
cies, as  of  so  much  money  with  reference  to  a  particular  fund  for 
their  payment.(ft)  This  kind  of  legacy  is  so  far  general,  and  differs 
so  much  in  effect  from  that  first  described,  that  if  the  funds  be 
called  in  or  fail,  the  legatees  will  not  be  deprived  .of  the'ir  legacies, 
but  be  permitted  to  receive  them  out  of  the  general  assets ;  yet  the 
legacies  are  so  far  specific,  that  they  will  not  be  liable  to  abate 
with  general  legacies  upon  a  deficiency  of  assets. (c) 

It  is  truest  that  this  Anomalous  kind,  of  specific  legacy  was  thought 
a  refinement  by  Lord  Thurloio  in  jlshburner  v.  MlGruire;(d)  yet,  it 
will  appear  from  the  authorities  after-mentioned,  that  a  distinction 
has  been  established,  in  accordance  with  the  civil  law,(e)  between 
the  bequest  of  a  sum  of  money,  with  reference  to  a  security  or  debt 
for  its  payment,  and  the  gift  of  the  security  itself,  and  that  they  are 
attended  with  the  different  consequences  before  stated.  We  shall 
proceed  to  consider, — 

SECT.  II.  What  LEGACIES  of  individual  personal 
Chattels,  are  and  are  not  specific. 

The  intention  of  testators  upon  this  subject,  as  in  every  question 
on  the  construction  of  wills,  is  the  principal  object  to  be  ascer- 
tained ;  and  it  is  therefore  necessary,  that  the  intention  be  either 
expressed  in  reference  to  the  thing  bequeathed,  or  otherwise  clearly 
appear  from  the  will,  to  constitute  the  legacy  specific.  What  is 
sufficient  for  that  purpose,  may  be  collected  from  the  definition 
given  of  a  specific  legacy  in  the  beginning  of  the  chapter,  and  from 
which  it  is- a  consequence. 

That  if  A.  bequeath  in  this  manner:  "  the  brooch  which  I  re- 
ceived as  a  present  from  A.  J5.";  or,  "  my  horse  named  Castor," 
&c. ;  such  and  the  like  bequests  will  be  specific,  for  the  object  is 

*  In  classing  legacies,  the  words  "  general  and  specific"  will,  thr&ughout  the 
present  work,be  exclusively  adopted,  though  there  is  highly  respectable  authority 
for  using  the  word  "  pecuniary"  synonimously  with  "  general  :"  It  is  not  how- 
ever strictly  accurate,  for  every  general  legacy  is  not  pecuniary  (?.  e. )  relating  to 
money }  and  one  species  of  specific  legacy  -is  of  a  pecuniary  nature,  so  that  there 
may  be  either  a  general  pecuniary  legacy,  or  a  specific  pecuniary  legacy.  The 
terms  "  general"  and  "  specific"  answer  every  purpose  without  involving  any 
ambiguity. 

(a)  1  Vern.  31.     1  P.  Will.  422.  540.  679.    3  P.  Will.  385.     3  Bro.  C.  C.  160. 

(b)  Touchst.  433:     Afnbl.  3\0.    4  Ves.  565.     3  Ves.  &  Bea.  5. 

(c)  2  Ves.  jun.  640.     5  Ves.  206.    Acton  v.  Acton,  1  Meriv.  178. 
(rf)  2  Bro.  C.  C.  108. 

{e)  Si  testator  scripserit  aureos  quadringentos  Pamphilx  dari  volo,  ita  ut  infra 
scriptum  est,  ab  Julio  autore.  aureos  tot,  et  in  castris,  qups  habeo  tot,  et  post 
multos  demum  annos  decesserit  cum  jam  omnes  summte  in  alios  usus  translate 
essent,  responsum  fuit ;  Pamphilx  quadringenta  deberi ;  quia  vero  similius  est 
patrem  familias  demonstrare  potius  hxredibus  voluisse,  unde  aureos  quadringentos 
sine  incommode  rei  familiaris  contrahere  possent,  quam  cbnditionem  fidei  commiso 
injecisse,  quod  ab  initio  pure  datum  esset.  Voet  on  Pand.  35.  tit.  1.  sect,  5. 


SECT.  III.]  Specific  Legacies.  151 

accurately  referred  to  and  described,  and  the  legacy  can  only  be 
satisfied  by  a  delivery  in  specie.(f) 

Thus,  a  bequest  of  so  many  of  the  testator's  horses  as  should 
amount  to  SOOJ.  was  held  in  Richards  v.  Richards,(g)  to  be  specific. 

But  if  it  be  uncertain  from  the  description  whether  any  particular 
horse  or  brooch  was  intended,  so  that  the  bequest  may  be  satisfied 
by  delivery  of  something  of  the  same  species  of  that  mentioned,  the 
legacy  will  not  be  specific.  Thus,  if  A.  having  many  brooches  or 
horses,  bequeath  "  a  brooch''  or  "  a  horse"  to  B. ;  in  these  and 
such  cases  the  legacies  will  not  be  specific  but  general. (Ji) 

So  also  if  there  be  error  in  the  description  in  the-  chattel  intended 
to  be  specifically  given,  the  mistake  may  be  of  such  a  nature  as  not 
to  be  permitted  to  disappoint  the  specific  bequest. 

If,  therefore,  'A.  having  one  horse  only,  which  is  white,  bequeath 
it  to-/?,  by  the  words  my  "  black  horse,"  the  mistake  is  obvious  and 
easily  remedied,  and  the  legatee  will -be  entitled  to  the  specific 
horse,  although  not  of  the  colour,  described,  for  there  can  be  no 
doubt  of  that  being  the  horse  intended- for  him,  and  the  legacy  will 
be  specific. (i) 

But  if  the  testator  had  two  white  horses  of  different  values,  and 
intending  one  of  them  in  particular  for  B.  bequeathed  it  to  him  by 
the  words,  "  my  white  horse,"  it  is  presumed  that  evidence  is  ad- 
missible, to  show  which  of  the  two  horses  was  intended. (&)  It  ap- 
pears upon  the  face  of  the  will,  that  >one  of  the  two  horses  was 
meant  for  B. ;  and  the  uncertainty  respecting  the  one  so  intended, 
arises  from  the  latent  ambiguity  developed  by  the  comparison  of  the 
will  with  the  testator's  property  :  it  seems,  therefore,  necessary  to 
resort  to  such  evidence  in  this  case,  upon  the  same  principle  which 
renders  it  admissible  to  determine  which  of  two  persons  of  the  same 
Christian  name  and  surname 'is  entitled  to  a  legacy  intended  for  one 
of  them,  but  which  is  bequeathed  by  a  description  applicable  to  both 
legatees.  (V) 

SECT.  III.  With  respect  to  LEGACIES  of,  and  relating  to, 
real  CHATTELS  and  ESTATES. 

1 .  A  lease  or  term  for  years  is  as  capable  of  being  made  the  sub- 
ject of  a  specific  bequest  as  freehold  estates  ;  bequests  or  devises  of 
which  are  always  specific. 

Accordingly,  if A.  bequeath  his  term  for  years  in  an  estate  at  B.  or 
the  lease  of  his  farm  there,(m)  or  "  the  lease  which  he  then  held,"(w) 
or  "  all  'his  tithes  payable  'out  of  C.,"(o)  (he  having  a  lease  for 
years  of  such  tithes),  or  if  after  bequeathing  his  leasehold  estate- to 
A.  for  life,  he  afterwards  give  it  to  B.  by  the  words,  "  all  my  estate, 
term  and  interest  therein"  (expression  which  must  be  confined  to 
his  estate,  term  and  interest  in  the  then  existing  lease,  and  not  be 
extended  to  any  future  lease  ;(p}  or  if  A.  devise  his  leasehold  estate 

(/)  Touchst  433.  (g)  9  Price,  219.  .  (A)  1  Atk.  417. 

(j)  Touchst.  433.  and  see  chap.  IV.  sect.  4. 

•  (£)  See  Selwood  v.  Mildmay,  3  Ves.  306.  and  2  Ves.  sen.  28.     1  Bro.  C.  C. 
477,     13  Ves.  174. 

(0  IP.  Will.  421.  425.     3  Ves.  148,     6  Ves.  42.  2  P.  Will.  140.    Ambl.  374. 

(m)  1  P.  Will.  403.  693.  (»)  2  Atk.  597. 

(o)  2  Ves.  sen.  419.     1  Bro.  C.  C.  263.  (fi)  16  Ves.  179.  • 


152  Specific  Legacies.  [Cn.  IIL 

to  trustees,  with  a  direction  to  apply  the  rents  for  the  benefit  of  C. 
or  to  accumulate  for  a  certain  period,  and  then  to  pay  or  transfer 
the  fund  to  C.;  each  of  those  bequests  will  be  specific,  for  the  in- 
tention is  clear  to  sever  the  property  from  the  rest  of  the  personal 
estate,  and  to  bequeath  it  specifically.  As  an  instance  of  the  case 
last  supposed, — 

In  Mayott  v.  Mayott,(qj  A.  directed  B.  by  will  to  take  possession 
of  his  farm  that  he  held  under  C.  and  the  stock,  crop,  &,.c,  and  to 
carry  on  the  farming  business  ;  and  also  that  the  net  yearly  produce 
from  it  should  be  placed  at  interest  upon  government  security  in  the 
name  of  D.  in  trust  to  accumulate  till  his  nephew  E.  had  a  son  of 
the  age  of  twenty-one,  at  which  time  the  business  of  the  farm,  with 
such  stock,  crop,  &c.  as  amounted  to  I500Z  was  to  be  assigned  to 
him ;  but  if  E.  had  no  such  son/.#.  bequeathed  s\ich  possession, 
stock,  crop,  &c.  to  the  .same  amount,  to  the  first  son  of  his  other 
nephew  attaining  twe'nty-one.  And  if  there  were  no  such  son  of 
either  nephew,  he  gave  the  same  amount  of  such  stock,  crop,  &c. 
to  F.  and  bequeathed  the  residue  of  the  monies  he  had  directed  to 
be -placed  out  as  aforesaid  in  D.'s  name,  with  3001.  stock,  and  all 
other  his  personal  estate  to  L.  M.,  &c.  A.  was  only  tenant  from 
year  to  year  of  the  farm,  and  C.  the  landlord,  would  not  permit  it  to 
be  carried  on  by  the  executor  of  A.  The  Master  of  the  Rolls  de- 
cided, that  since  the  farm  could  not  be  continued,  the  legacies 
could  never  become  due,  (i.  e.)  as  they  were  intended  to  consist  of 
the  yearly  net  produce  of  the  farm,  it  was  a  necessary  consequence, 
that  as  the  farm  (the  principal)  was  lost;  the  legacies,  its  accessaries, 
must  share  the  same  fate. 

'  2.  Since  a  term  for  years  may  be  specifically  bequeathed,  so  may 
a  rent  made  issuing  out  of  it;  which  is  equally  the  case  in  relation 
to  rents  of  other  real  estates.  .If,  therefore,  a  term  for  years  or  other 
estate  be  bequeathed  to  B.  and  a  rent  out  of  it  to  C.,  as  the 
bequest  to  B.  is  specific,  so  is  the  rent  given  out  of  it  to  C.;  for  it 
must  be  inferred  to  have  been  the  undoubted  intention  of  the  testa- 
tor, from  the  forms  of  the  bequests,  to  divide  the  fund  between  B. 
and  C.  by  giving  the  term  or  estate  to  the  one,  and  the  rent  out  of 
it,  to  the  other.  And  by  whatever  words  expressed,  or  however  col- 
lected from  the  whole  will,  if  the  intention  clearly  appear  to  give 
specifically,  that  intention  will  make  the  legacy  specific,  although 
a  court  of  equity  is  well  known  to  be  averse  to  such  a  construction, 
on  account  of  the  consequences  attending  that  species  of  bequest. 

Accordingly  in  Long  v.  Shorter)  A.  bequeathed  401.  a  year  to  B. 
for  life,  out  of  his  chattel  estate  at  Kenn,  and  101.  a  year  to  C.  for 
life,  out  of  the  sarrie  estate,  which  he  gave  to  D.  These  several  be- 
quests were  decreed  by  Lord  Cdwper  to  be  specific,  his  Lordship  re- 
marking, that  the  devise  pf  a  rent  charge  out  of  a  term,  is  as  much 
a  specific  devise,  as  if  it  had  been  of  the  term  itself. 

In  the  last  case,  it  must  be  observed,  that  the  legacy  was  of  a  rent, 
part  of  the  yearly  produce  of  the  .term,  and  incapable  of  separation 
from  it ;  hence  the  devise  of  the  term  being  specific,  the  disposition 
of  a  portion  of  its  rent  was  equally  so,  and  the  decision  was  in  per- 
fect unison  with  the  testator's  intention.  If,  however,  the  intention 

(?)  2  Bro.  C.  C.  125,  ed.  by  Belt,      (r)  1  P.  Will.  403.  and  see  2  Ves.  sen.  623. 


SECT.  III.]  Specific  Legacies.  153 

be  apparent  to  give  the  -legatee  an  annuity,  for  life,  at  all  events, 
then  although  the  annuity  be  given  out,  or  be  directed  to  be  paid 
out  of  an  estate  or  the  rents  of  it,  such  annuity  will  be  general,  and 
not  fail  by  the  eviction  of  the  fund,  or  the  insufficiency  of  the  charge 
of  the  legacy  upon  it.  As  an  example  of  this — 

In  Mann  v.  Copland,(s)  Ji.  bequeathed  as  follows :  "  to  B.  my 
servant,  I  give  an  annuity  of  Wl.  during  his  life,  to  be  paid  out  of 
the  rents  arising  from  an  estate  of  a  house  (which  was  freehold)  in 
C.  &.c.  should  he  be  in  my  service  at  my  death.  There  being  a  deed 
existing  between  me  and  my  brother,  whereby  I  give  up  all  my  in- 
terest in  the  house,  which  I  have  requested  him  by  letter  to  cancel. 
These  deeds  are  now  in  the  possession  of  D.  of,  &c.  It  is  my  de- 
sire, if  the  deeds  be  not  cancelled,  that  the  sum  of  200Z.  shall  be  se- 
cured from  the  sum  of  2000/.  five^er  cents  navy,  in  trust  for  the  said 
B.  during  his  life,  I  also  give  to  the  said  B.  all  my  clothes  and  linen." 
The  will  was  not  properly  attested  to  charge  freehold  lands  ;  nor  was 
the  testator  possessed  of  any  navy  annuities.  The  question  was, 
whether  the  bequest  of  the  annuity  was  general  or  specific;  for  if  it 
were  the  latter,  it  could  not  take  effect.  But  Sir  Thomas  Plumer, 
V.  C.  determined  upon  the  construction  of  -the  will  that  the  legacy 
was  not  specific  ;  for,  said  his  Honour,  the  intention  is  clearly  mark- 
ed to  give  B.  a  legacy  of  101.  a  year  during  his  life,  if  he  were 
in  A's  service  at  ./2.'s  death,  and  which  event  happened  ;  and  that 
Jl.  also  gave  him  his  clothes  and  linen.  His  Honour  also  observed, 
that  A.  first  gave  the  annuity,  and  then  proceeds  to  say  out  of  what 
it  was  to  be  paid,  first  the  real  estate,  if  it  existed,  and  next,  the  five 
per  cents ;  but,  said  his  Honour,  the  legacy  might  stand,  although 
the  fund  Out  of  which  it  was  directed  to  be  paid  did  not  exist ;  that 
the  legacy  was  not  so  specific  and  so  connected  with  the  fund  as  to 
fail  if  there  were  no  such  fund,  it  appearing,  that  there  was  a  fixed, 
independent,  separate,  distinct  intent  to  give  the  legacy ;  the  particu- 
lar property,  out  of  which  it  was  to  be  paid,  being  a  secondary 
thought.  The  Court  further  remarked,  that  the  testator  meant  to 
give  2001.  out  of  his  personal  estate,  to  be  set  apart  as  a  fund  for 
payment  of  the  legacy,  and  that  there  being  a  positive  intent  to  give 
the  legacy,  although  the  mode,  by  which  payment  of  it  was  to  be 
secured,  failed,  yet  the  legatee  was  entitled  to  have  it  made  good 
out  of  the  personal  estate. 

3.  So  also  if,  instead  of  an  annuity,  a  gross  sum  be  given  out  of 
a  term  or  estate,  it  would  seem  that  such  bequest  would  operate  as 
a  charge  only  upon  the  property ;  and  be  considered  as  a  demon- 
strative legacy,  (t)  i.  e.  a  gift  of  so  much  money,  intended  for  the 
legatee  at  all  events,  with  a  fund  (the  estate)  particularly  referred  to 
for  its  payment ;  so  that  if  the  estate  be  not  the  testator's  property 
at  his  death,  the  legacy  will  not  fail,  but  be  payable  out  of  his  ge- 
neral assets.  This  is  one  of  that  class  of  legacies,  mentioned  in  the 
beginning  of  this  chapter,  as  not  being  regular  specific  legacies,  but 
in  the  nature  of  specific  legacies.  The  above  observations  will  re- 
concile the  case  last  stated  with  that  of  Savile  v.  Blacket,  and  the 
other  authorities  after  mentioned  upon  this  species  of  bequests. 

(«)  2  Madd.  223.  (f)  4  Ves.  741, 

VOL.  I.  U 


154  Specific  Legacies.  [Cn.  III. 

In  Savile  v.  Blacket,(u)  A,  having  a.  power  of  charging  1000Z.  upon 
lands  (which  power  he  afterwards  destroyed,)  bequeathed  1.000Z.  to 
his  child  B.  out  of  the  lands,  and  also  1000Z.  which  he  charged  upon 
his  personal  estate.  The  first  1000Z.  not  being  an  effectual  charge 
upon  the  lands  in  consequence  of  the  destruction  of  the  power,  the 
question  was  whether  the  bequest  was  not  specific  and  therefore 
failed  9  But  Lord  Macclesfield  decided  in  the  negative,  observing, 
that  it  was  the  intention  to  leave  B.  the  above  two  sums,  the  one 
charged,  by  express  words,  on  the  personal  estate ;  and  the  other 
•upon  the  lands ;  that  if  a  legacy  were  given  to  J.  S.  to  be  paid  out 
of  such  a  particular  debt,  and  none  was  found  owing,  or,  there  being 
one,  it  failed,  still  the  legacy  ought  to  be  paid,  and  the  failing  of  the 
modus  appointed  for  payment  should  not  defeat  it. 

Upon  the  same  principle  the  decision  was  made  in  the  recent 
case  of  Fowler  v.  Willoughby.(x)  In  that  case  the  testator  direct- 
ed a  legacy  to  be  paid  out  of  the  produce  of  an  estate  which  he  had 
contracted  to  purchase,  but  which  contract  could  not  be  completed ; 
and  it  was  held,  that  the  legacys  hould  be  paid  out  of  the  testator's 
general  assets,  though  the  particular  security  intended  by  him  hap- 
pened to  fail. 

4.  It  appears  that  the  principle  of  the  decision  of  Savile  v.  Blacket 
was  the  intention  of  the  testator  not  to  make  the  legacy  depend 
upon  the  due  execution  of  his  power,  but  to  bequeath  a  sum  equiv- 
alent to  what  he  was  entitled  to  charge  upon  the  estate,  with  refer- 
ence only  to  that  estate  as  the  primary  fund  for  payment  of  it ;  that 
such  was  the  testator's  intention,  appeared  to  Lord  Macclesfield, 
upon  the  construction  of  the  whole  will.  Following  then  the  same 
principle,  viz.  the  intention  of  testators,  if  a  testator  direct  his  free- 
hold or  leasehold  estates  to  be  sold,  and  dispose  of  the  proceeds  in 
such  a  form  as  to  evince  an  intention  to  bequeath  them  specifically, 
the  testamentary  dispositions  will  be  specific,  the  money  is  suffi- 
ciently identified  and  severed  from  his  other  property ;  and  since 
he  has  sufficiently  marked  his  intent  to  distribute  the  identical  pro- 
ceeds, the  bequests  are  accompanied  with  all  the  requisites  of  spe- 
cific legacies. 

An  instance  of  this  kind  occured  in  Page  v.  Leapingwell.(y)  In 
that  case  A.  devised  to  B.  real  estates  in  trust  to  sell,  but  not  for  a 
less  sum  than  10,OOOJ. ;  and  he  directed  B.,  out  of  the  monies  ari- 
sing from  the  sale,  in  the  first  place,  to  lay  out  the  sum  of  3000Z.  in 
purchasing  a  benefice  for  his  godson,  C.  He  also  directed  B.,  by 
and  out  of  the  monies  arising  from  such  sale  as  aforesaid,  to  lay  out 
the  sum  of  4000J.  in  the  purchase  of  lands  in  the  county  of  Essex, 
and  as  his  nephew  D.  should  choose  ;  and  he  further  directed  B.  by 
and  out  of  the  monies  arising  from  such  sale-  as  aforesaid,  to  place 
the  sum  of  5001.  at  interest  in  the  funds  in  his  own  name,  and  to  pay 
the  dividends  to  E.  for  life,  and  afterwards  to  divide  the  principal  as 
therein  mentioned.  The  testator  then  gave  three  legacies  of  100Z. 
each,  and  directed  B.  after  payment  of  the  above  legacies,  to  invest 
in  the  public  funds  all  the  overplus  monies  arising  from  the  sale  of 
his  said  real  estates,  and  to  pay  the  dividends  to  F.  and  G.  equally. 
The  testator  then  proceeded  to  dispose  of  other  parts  of  his  property, 

(«)  1  P.  Will.  778.  (x)  2  Sim.  &  Stu.  354.  \y)  18  Ves.  463. 


SECT.  IV.]  Specific  Legacies.  155 

and  concluded  with  a  general  residuary  bequest.  The  proceeds 
from  the  sale  of  the  lands  were  less  than  7000/.  The  questions  were, 
whether  the  legacies  were  specific  °l  and  if  so,  whether  F.  and  G. 
were  entitled  to  any  part  of  the  fund  with  the  other  legatees,  since 
what  was  given  to  them  appeared  to  be  residuary.  And  Sir  W. 
Grant,  M.  R.  was  of  opinion  that  the  legacies  were  specific,  upon 
the  principle  that  the  testator  assumed  he  had  at  least  10,000£:  pro- 
ceeds from  the  sale  to  dispose  of,  and  that  he  portioned  them  out 
among  the  legatees.  His  Honour  also  considered  the  testator  to 
mean  that  F.  and  G.  should  take  at  the  least  what  should  remain 
after  payment  of  the  specific  legacies,  viz.  2200Z.  (the  testator  assum- 
ing that  the  proceeds  would  amount  to  10,OOOZ.,  but  if  to  more, 
then  intending  them  the  excess.)  The  determination  was,  that  if  the 
lands  had  produced  1 0,000 L  the  shares  of  F.  and  G.  in  it,  would 
have  been  2200/. ;  F.  and  G.  were  therefore  entitled  to  so  much  of 
that  sum  as  remained,  after  abating  rateaWy  with  the  other  specific 
legatees. 

SECT.  IV.     As  to  Legacies  of  Money  and  Personal  Annuities. 

1.  That  money  may  be  the  subject  of  a  specific  bequest  is  a  point 
firmly  settled. (z) 

Suppose  A.  to  bequeath  to  B.  1000L  deposited  in  a  certain  chest, 
bag,  or  purse,  or  in  the  hands  of  C.,  the  lagacies  will  be  specific. (a) 
In  these  instances  the  money  is  separated  from  the  general  personal 
estate,  and  is  described  in  that  condition,  so  that  the  bequest  of  it 
falls  within  the  before-mentioned  definition  of  a  specific  legacy. 
The  intent  is  clear  to  give  the  identical  money,  and  not  a  sum  of  the 
like  amount  generally,  which  would  be  merely  a  general  legacy. 
The  legatee  therefore  can  say  to  the  executor,  give  me  the  1000Z.  in 
specie  which  are  in  the  chest,  bag,  or  purse,  or  in  the  hands  of  C. 
for  that  specific  money  is  mine. 

Thus  in  Ellis  v.  Walker,(b)  A.  the  partner  of  B.f  bequeathed  to 

B.  2000Z.  which  appeared  to  be  due  to  A.  on  the  last  settlement,  in 
trust,  to  pay  the  interest  of  1000Z.  to  his  (./#.'«)  mother,  and  the  in- 
terest of  3001.  to  his  aunt,  for  their  lives ;  and  after  their  death  he 
gave  1500J.  to  C.  and  5001.  to  D.  "  if  he  did  not  draw  it  out  of  trade 
before  he  died."  The  question  was,  whether  the  2000Z.  were  so  given 
as  to  constitute  a  specific  legacy  "?     And  Lord  Hardwicke  decided 
in  the  affirmative,  for,  said  his  Lordship,  the  testator  being  partner 
with  B.  made  up  with  him  an  account  by  which  2000Z.  (that  is  in 
value,)  appeared  to  belong  to  the  testator ;  B.  would  not  have  been 
answerable  for  20001.  at  all  events,  but  only  for  the  testator's  share 
of  the  stock.     It  was  not  a  gift  of  2000Z.  debt,  but  of  so  much  out  of 
the  partnership  stock,  yet,  said  his  Lordship,  the  latter  words,  "  If 
I  do  not  draw  it  out  of  the  trade,"  make  great  alteration,  and  in  my 
opinion  make  the  legacy  specific. 

But  when  the  language  of  the  bequest  is  such,  that  neither  by  re- 
ference to  any  collateral  thing,  can  the  money  bequeathed  be  distin- 
guished from  the  testator's  other  monies,  nor  a  clear  intention  be 

(z)  See  sect.  7.  as  to  specific  legacies  of  debts. 

(a)  1  Atk.  508.     1  P.  Will,  540.     2  P.  Will.  164.     Pulsford  v.  Hunter,  3  Brc. 

C.  C.  416.  (A)  Ambl.  309. 


156  Specific  Legacies.  [Cn.  III. 

perceived  to  give  a  specific  part  of  his  personal  estate,  such  a  be- 
quest will  be  general ;  it  does  not  fall  within  the  definition  which 
has  been  given  of  a  regular  specific  legacy.  The  legatee  is  unable 
to  point  out  to  the  executor  any  particular  sum  of  money  that  he  can 
call  his  own,  as  he  had  the  power  of  doing  in  the  former  instances. 
The  legacy,  therefore,  must  necessarily  be  general.  An  instance 
of  this  occurs  in  the  common  bequest  of  a  sum  of  money,  without 
mentioning  out  of  what  fund  it  is  to  be  paid.  The  legatee  has  no 
particular  part  of  the  personal  assets  to  resort  to, .  but  the  intention 
is  satisfied  by  the  executor's  payment  of  the  legacy  out  of  any  por- 
tion of  them. 

In  Richards  v.  Richards,(c)  a  legacy  of  4001.  cash  was  determined 
to  be  a  general  legacy. 

It  is  also  to  be  remarked,  that  it  is  not  the  object  or  purpose  for 
which  a  legacy  is  directed  to  be  applied  that  make  it  specific,  but  (as 
before  observed)  the  intention  of  the  testator  expressed  or  clearly 
appearing  from  his  will  in  reference  to  the  thing  given,  so  as  to  sepa- 
rate and  distinguish  it  from  his  other  property.  Hence  it  fol-lows, 
that  whatever  may  be  the  relationship  of  the  legatee  to  the  testator, 
or  whether  the  legacy  be  by  absolute  gift,  or  to  a  person  in  trust, 
and  to  be  the  subject  of  settlement  upon  several  persons,  such 
legacy,  if  given  generally,  will  be  general,  not  specific. 

It  was  accordingly  decided  in  the  modern  case  of  Apreece  \. 
Apreece,(d)  that  50Z.  apiece  bequeathed  by  A.  to  B.  and  C.  for  rings, 
were  not  specific  legacies. 

So  also  it  was  determined  in  the  Attorney  General  v.  Robins,(e) 
that  legacies  of  60Z.  a  piece  to  executors,  for  their  care  and  pains 
should  not  be  preferred  to  general  legacies,  and  consequently  that 
they  were  not  specific,  which  determination  was  approved  by  Lord 
Hardwicke  in  Heron  v.  Heron.(f) 

And  it  was  holden  in  the  same  case  of  the  Attorney  General  v. 
Robins  that  bequests  of  5Z.  a  piece  to  servants  were  not  entitled  to 
any  preference  to  others. 

Charities  too  are  not  exceptions  to  this  rule,  for  it  was  decided  in 
the  case  last  referred  to,  that  legacies  to  charities  had  no  preference 
to  others,  and  were  consequently  not  specific. (g) 

And  if  a  sum  of  money  were  bequeathed  in  trust  to  be  laid  out  in 
the  purchase  of  lands,  or  to  be  invested  in  government  securities, 
neither  of  those  purposes  will  make  the  legacy  specific.  The  first 
point  was  so  decided  in  Hinton  v.  Pinke,(h)  the  second  in  Lawson  v. 
Stitch,(i)  and  again  in  Gibbons  v.  Hills,  (k} 

In  the  last  case  A.  (amongst  other  things)  directed  3920Z.  bank 
annuities  to  be  purchased  out  of  his  personal  estate  for  B.,  C.  and 
D.  Upon  the  question,  whether  that  direction  amounted  to  a  spe- 
cific bequest1?  Sir  Thomas  Clarke,  M.  R.  determined  in  the  nega- 
tive. 

2.  Upon  the  same  principle  that  the  several  legacies  before  men- 
tioned were  adjudged  to  be  general,  it  would  seem  that  a  voluntary 
bequest  of  annuities  out  of  or  charged  upon  personal  estate,  will  not 


(e)2  P.  Will.  23. 

2  Atk.  161.  171.          Cr)  1  P.  Will.  433.  (A)  Ibid.  539. 

'.Will.  539.  5.  P. 


(c)  9  Price,  219.  (d)  1  Ves.  &  Bea.  364. 

(/)  2  Atk.  161. 171.         Cr)  1  P.  Will.  433. 

(0  1  Atk.  507.  (k  1  Dick.  324.  and  see  1  P, 


SECT.  V.]  Specific  Legacies.  157 

be  specific  whether  the  legatee  be  a  stranger  or  the  -wife  or  child  of 
the  testator  ;  for  whatever  may  be  the  intention  imputable  to  a  tes- 
tator, when  such  a  bequest  is  made  in  favour  of  a  wife  or  child,  it 
rests  in  probability  only,  and  is  defective  in  not  being  apparent  in 
his  will.  Besides  it  is  not  (as  before  observed)  the  purpose  or  object 
to  which  a  legacy  is  applicable  that  makes  it  specific,  but  the  inten- 
tion properly  expressed  or  fairly  and  clearly  to  be  collected  from  the 
will,  to  give  a  part  of  the  testator's  personal  estate  that  can  be  dis- 
tinguished and  identified  from  the  remainder. 

In  Hume  v.  Edwards,(l)  an  annuity  charged  upon  the  testator's 
personal  estate  was  bequeathed  to  «#.  for  life.  And  Lord  Hardwicke 
determined  upon  the  authority  of  Mton  v.  Medlicot,  that  the  bequest 
was  not  specific. 

In  the  case  ofJllton  v.  Medlicot,(m)  there  was  a  direction  by  will 
to  layout  a  portion  of  the  personal  assets  in  the  purchase  of  an  an- 
nuity. That  direction  was  held  to  be  a  general,  and  not  a  specific 
legacy.  Lord  Hardwicke  appears  to  have  ascribed  the  decision  to 
the  form  of  bequest  being  merely  a  direction  to  lay  out,  &c.  and  not 
a  gift  of  the  annuity ;  but  he  observed,  that  the  Court  afterwards 
considered  such  a  distinction  too  subtle,  and  had  therefore  decid- 
ed(w)  that  an  annuity  by  will  out  of  personal  estate  by  direct  devise 
or  legacy,  should  abate  with  general  legacies.  But  it  was  observed 
by  his  Lordship,  that  such  only  was  the  general  rule,  for  the  intent 
of  the  testator  on  the  construction  of  the  will  must  be  followed,  if 
he  prefer  such  annuitant  before  other  legatees;  and  his  Lordship 
thought  that  such  intention  appeared  in  the  case  of  Lewin  v.  Lew- 
in.(o)  But  since  these  bequests  bear  no  similitude  to  specific  lega- 
cies, and  are  admitted  to  be  general,(p)  and  since  the  claims  of  the 
wife  and  children  arose  upon  questions  of  their  being  obliged  to 
abate,  pari  passu,  with  general  legatees,,  the  consideration  of  the 
cases  upon  this  subject  is  postponed  till  we  arrive  at  the  seventh 
chapter,  which  treats  of  the  abatement  of  general  legacies. 

SECT.  V.  Of  Stock  or  Annuities  in  public  funds. 

From  the  definition  of  a  regular  specific  legacy  in  the  beginning 
of  the  chapter,  it  is  obvious  that  stock  or  government  annuities  may 
be  specifically  bequeathed ;  but  in  order  to  make  the  bequests  spe- 
cific, the  intention  that  they  should  be  so,  must,  be  clear,  otherwise 
the  bequests  will  be  general. 

1.  The  word  "my"  preceding  the  word  "stock"  or  "annuities" 
has  frequently  been  adjudged  sufficient  to  render  the  legacy  spe- 
cific.    If,  therefore,  I  were  to  bequeath  to  B.  my  capital  stock,  sup- 
pose  WOOL  in  that  of  the  India  Company/^)  or  "  1000Z.  in  my 
stock,"  or  "  part  of  my  stock",(r)  the  legacies  would  be  specific. 

2.  But  it  seems  to  be  settled  that  mere  possession  by  the  testator, 
at  the  date  of  his  will,  of  stock  or  annuities  of  equal  or  larger  amount 
than  the  bequest,  will  not  (without  words  of  reference,  or  an  inten- 
tion appearing  upon  the  will  that  he  meant  the  identical  stock  of 

(/)  3  Atk.  693.      (TO)  Cited  2  Ves.  sen.  417.        (ra)  Hume  v.  Edwards,  above, 
(o)  2  Ves.  sen.  415.  (/z)  Ibid.  421. 

(q)  Ashburner  v.  M'Guire,  2  Bro.  C.  C.  108.  Barton  v.  Cooke,  5  Ves.  461. 
Norria  v.  Harrison,  2  Madd.  280.  Cfioat  v.  Yeats,  1  Jac.  &  Walk.  102. 
(r)  4  Ves.  750.  1  Eq.  Ca.  Abr.  302. 


158  Specific  Legacies.  [Cn.  III. 

which  he  was  possessed)  make  such  bequest  specific.     In  proof  of 
this, — 

A.  bequeathed  1000J.  capital  South  Sea  stock  to  his  wife  for  life 
for  her  separate  use,  with  a  power  of  disposition  among  her  children. 

A.  was  possessed  of  18QOI.  of  that  kind  of  stock  when  he  made  his 
will,  which  he  afterwards  reduced  to  2001.  and  again  increased  by 
purchase  to  16001.     It  was  one  of  the  questions,  whether  the  re- 
duction was  not  an  ademption,  which  depended  upon  a  prior  inquiry, 
whether  the  legacy  was  specific1?    And  Lord  Talbpt  was  of  opinion 
that  the  legacy  was  not  specific,  remarking  that  it  was  not  the  par- 
ticular stock  the  testator  was  possessed  of  which  he  gave,  but  the 
bequest  was  merely  descriptive  of  the  nature  .of  the  thing  given,  of 
which  "he  had  sufficient  to  answer  the  legacy  .at  the  time  of  his 
death.(s)    Again, — 

In  Simmons  v.  Vallance,(t}  B.  bequeathed  as  follows :  he  gave  to 
C.  the  interest  of  1001.  new  South  Sea  annuities,  for  life,  and  after 
his  death  to  be  equally  divided  among  his  children;  and  he  also  gave 
to  C.'s  children  living  at  J5.'s  death,  "  the  sum  of  501.  each  new 
South  Sea  annuities,"  with  interest  from  his  death,  and  the  principal 
at  twenty-one.  B.  further  gave  to.D.  the  interest  of  1001.  new  South 
Sea  annuities  for  life,  and  after  his  death  to  devolve  to  E.  When 

B.  died  he  had  SOOl.  new  South  Sea  annuities  standing  in  his  name, 
which  he  was  presumed  to  have  had  at  the  date  of  his  will,  although 
it  was  not  stated.     The  only  question  was,  whether  these  legacies 
were  general  or  specific  9  And  the  Master  of  the  Rolls  was  of  opinion 
that  they  were  general  legacies,  and  therefore  liable  to  abate  with 
the  other  general  legacies. 

So  also  in  Wilson  v.  Brownsmith,(u}Jl.  bequeathed  to  .B.  and  C. 
"  200Z.  four  per  cent  consolidated  bank  annuities."  And  it  was  one 
of  the  questions,  whether  the  form  of  bequest  was  specific'?  And 
Sir  William  Grant  decided  that  it  was  general,  and  not  specific. 

The  three  last  cases  are  authorities  that  where  a  bequest  is  gene- 
ral of  stock  or  annuities,  the  mere  circumstance  of  the  testator 
having  the  same,  or  a  greater  quantity  of  stock  or  annuities  answer- 
ing the  description  of  those  given,  will  not  convert  the  bequest  into 
a  specific  legacy.  But  the  case  of  AsJiton  v.  Ashton  should  be  ad- 
verted to,  which  although  it  may,  on  the  first  impression,  appear  to 
militate  against  the  last  decisions,  is  yet  capable  of  being  recon- 
ciled. 

In  that  case,(x)  Ji.  bequeathed  to  trustees  60001.  South  Sea  annui- 
ties, in  trust  to  sell  and  lay  out  in  the  purchase  of  lands  to  be  settled, 
&c. ;  and  he  afterwards  by  a  codicil  gave  them  a  further  sum  of 
12001.  to  the  same  uses.  A.  having  only  5360Z.  South  Sea  annui- 
ties at  the  date  of  his  will,  Lord  Talbot  determined  the  bequest  of 
annuities  to  be  specific ;  and,  that  therefore,  the  deficiency  of  the 
fund  should  not  be  supplied  out  of  Jl's  general  personal  estate. 

It  will  have  been  noticed  that  in  the  last  case,  there  were  no 

(s)  Partridge  v.  Partridge^  Forrest,  226. 

(0  4  Bro.  C.  C.  345.  and  see  Webster  v.  Hale,  8  Ves.  411.  S.  P, 

(u)  9  Ves.  180. 

(.r)  Reported  in  Forrest,  152.  and  3  P.  Will.  384.  Approved  of  in  Sleech  v.  Tho- 
rington,  2  Ves.  sen.  564.  and  a'dopted  in  principle  by  Lord  Thurlow  in  Danvers  v. 
Manning,  2  Bro.  C.  C.  18. 


SECT.  V.]  Specific  Legacies.  159 

words  of  reference  to  any  particular  annuities  which  the  testator  had 
at  the  date  of  his  will ;  hence,  the  inference  that  he  intended  the 
identical  South  Sea  annuities  he  was  then  possessed  of,  must  have 
arisen  from  some  other  circumstance,  namely,  the  gift  of  them  to  the 
trustees  in  the  form  of  a  present  legacy  in  trust  to  sell;  and  which  it 
is  presumed  distinguishes  this  case,-and  reconciles  it  with  the  autho- 
rities before  stated.  So  explained,  there  does  not  appear  to  be  any 
case  with  which  the  present  is  inconsistent,  or  by  which  it  has  been 
either  expressly  or  necessarily  over-ruled,  as  has  been  supposed  ;(y) 
but  it  seems  to  remain  an  authority  to  this  extent :  that  if  a  person, 
having  1000Z.  three  per  cent  consols,  bequeath  1000Z.  three  per  cent 
consols  to  trustees,  in  trust  to  sell,  &c.  the  bequest  will  be  specific; 
the  intention  being  manifest,  not  conjectural,  that  from  the  direc- 
tion to  sell  three  per  cent  consuls  the  testator  referred  to  the  stock 
he  then  had;  such  direction  being  equivalent  to  an  express  gift  of 
the  fund.  The  principle  appeal's  to  be  sound,  for  it  is  more  reason- 
able to  impute  to  the  testator  an  intention  that  his.  trustees  should 
sell  the  annuities  which  he  had  when  his  will -was  made,,  than  that 
they  should,  after  his  death,  buy  similar  annuities  for  the  mere  pur- 
pose of  immediate  sale,  which  they  must  do  if  they  acted  according 
to  the  letter  of  the  will. (z)  This  appears  to  distinguish  the  case  of 
rfshton  v.  Ashton  from  Sibly  v.  Perry,  after  mentioned. (a) 

3.  We  shall  now  proceed  to  consider  the  effect  of  a  testator  (who 
possesses  stock  or  annuities  in  a  particular  fund)  bequeathing  a  given 
sum  of  money,  stock  or  annuities  in  that  fund,  without  more  parti- 
cularly referring  to,  or  marking  the  corpus  of  the  identical  stock 
which  he  actually,  had  in  that  fund  at  the  date  of  his  will.  It  has 
been  observed  that  clear  intention  is  necessary  to  make  a  legacy 
specific ;  but  it  does  not  exist  in  the  present  instance,  for  the  testa- 
tator  might  only  mean  to  direct  his  executor  to  purchase  with  his 
general  estate  so  much  stock  in  the  fund  described :  such  is  the 
legal  effect  of  the  bequest;  and  that  it  is  not  specific,  but  general, (6) 
will  appear  from  the  majority  of  the  following  cases : 

A.  bequeathed  toB.  "  5000Z.  in  the  old  annuity^tock  of  the  South 
Sea  company,"  and  after  two  or  three  intervening  legacies  of  stocks 
of  different  kinds,  he  "  gave  to  C.  5000Z.  in  the  old  annuity  stock  of 
the  South  Sea  company."  When  the  testator  made  his  will,  and 
also  at  his  death,  he  had  only  50001.  in  old  South  Sea  annuity  stock, 
which  B.  claimed  as  legatee.  The  question  was,  whether  B.  and  C. 
were  entitled  to  50001.  each  South  Sea  annuity  stock,  in  which  case 
it  was  necessary  to  resort  to  the  general  assets,  or  whether  the  lega- 
cies were  specific;  for  if  specific,  then  there  being  only  one  5000L 
South  Sea  annuity  stock,  the  two  legatees  would  be  under  the  ne- 
cessity of  abating  inter  se,  and  dividing  the  fund  between  them.  The 
question  having  been  submitted  to  the  Master  of  the  Rolls,  he  de- 
clared that  as  there  was  only  one  50001.  old  South  Sea  annuity,  one 
only  could  pass  by  the  will,  which  with  the  interest  accrued  since 
the  testator's  death,  was  devisible  between  the  two  legatees.  But 
that  decision  being  unsatisfactory,  the  legatees  appealed  to  Lord 
Hardwicke,  who  reversed  the  decree,  deciding  that  the  legacies  were 

(t/)  9  Ves.  181.  (z}  See  2  Ves.  sen.  564.     1  Atk.  418. 

(c)  See  infra,  p.  163.  (6)  See  1  Atk.  416. 


160  Specific  Legacies.  [Cn.  III. 

general,  and  not  specific ;  and  he  ordered  the  deficiency  to  be  made 
good  out  of  the  general  assets. (c) 

The  case  ofrfvelynv.  Warded]  afterwards  determined  by  his  Lord- 
ship, appears  to  be  not  only  contrary  in  principle  to  the  last,  but  to 
the  authorities  after  stated.  In  that  case,  one  of  the  bequests  was, 
««  of  2000/.  in  the  stock  of  South  Sea  annuities,  to  trustees  in  trust 
to  pay  the  produce  to  A.  for  life,  and  to  retain  after  her  death  1000Z. 
part  of  the  2000/.  in  trust  for  B.  but  to  pay  the  dividends  to  her 
during  marriage,  and  after  its  determination,  to  tranfer  the  1000/.  to 
her  if  living,  or  if  dead,  according  to  her  appointment."  The  testator 
also  gave' the  remaining  1000Z.  after  the  death  of  A.  to  several  per- 
sons. There  was  another  legacy  "of  1200/.  of  the  stock  called  South  sea 
annuity  stock, .  in  trust  for  jB.  These  several  legacies,  Lord  Hard- 
wicke  held  to  be  specific,  from  the  mere  circumstance  (as  it  is  pre- 
sumed) of  the  testator  having  been  possessed  of  more  South  sea  an- 
nuities when  he  made  his  will,  than  the  amount  of  the  legacies 
given  in  that  fund,  whence  his  Lordship  inferred  an  intention  in  the 
testator  to  bequeath  90  much  of  the  identical  stock  he  then  had,  and 
not  to  impose  an  obligation  upon  his  executors  to  purchase  the  ne- 
cessary quantity  of  stock  to  answer  the  legacies.  To  this,  it  may 
be  answered,  that  if  the  circumstance  of  having  stock  at  the  time  of 
the  date  of  the  will,  be  of  itself  sufficient  to  make  a  bequest  of  simi- 
lar stock  specific,  all  legacies  of  stock,  whatever  their  form  may  be, 
and  however  regardless  of  the  fund  then  actually  standing  in  the 
testator's  name,  must  be  specific ;  a  doctrine  in  opposition  to  Par- 
tridge v.  Partridge,  and  the  cases  before  stated,  and  also  to  the 
other  authorities  which'  will  be  afterwards  produced. 

The  present  case  is  much  weaker  than  that  ofJlshton  v.  Ashton,(e) 
referred  to  in  it,  for  there  the  trust  was  to  sell  60001.  South  Sea  an- 
nuities, which  direction  of  sale  raised  an  irresistible  inference  that 
the  testator  meant  and  referred  to  a  sum  in  the  like  annuities,  which 
he  had  when  his  will  was  made,  though  of  an  inferior  amount,  and 
that  he  could  not  be  so  unreasonable  as  to  have  intended  that  his 
executors  should  purchase  South  Sea  annuities  for  the  mere  purpose 
of  selling  again;  when  he,  at  the  date  of  his  will,  was  possessed  of 
similar  annuities,  to  which  the  trust  could  with  propriety  be  applied. 
With  respect  to  the  expression  "  remaining,"  used  in  bequeathing 
1000Z.  residue  of  the  2000Z.  South  Sea  annuities,  it  is  ambiguous, 
and  capable  of  being  referred  to  annuities  of  the  latter  amount,  to 
be  purchased  by  the  executor,  as  well  as  to  those  of  which  the  tes- 
tator was  possessed  when  he  made  his  will,  an  ambiguity,  not  re- 
moved as  in  Sleech  v.  Thorington  (after  stated)  by  the  additional 
words  "now  standing  in  my  name."  Besides,  if  it  be  true,  as  ap- 
pears from  the  cases,  that  courts  of  equity  are  always  anxious  to  adopt 
constructions  in  favour  of  general  and  against  specific  legacies,  to 
avoid  the  inconveniences  to  which  the  latter  are  exposed ;  and  that 
these  courts  must  be  satisfied  by  express  words  or  mainfest  intention 
appearing  upon  the  will,  that  the  testator  meant  to  bequeath  all  or 
part  of  the  identical  stock  he  possessed  when  he  made  such  will,  be- 
fore they  pronounce  the  legacies  to  be  specific,  it  seems  difficult  to 

(c)  Purse  v.  Snafilm,  Ibid.  415.     (d)  1  Ves.  sen.  424,  et  vide  Belt's  Suppl.  p.  184. 
C<?)  Stated  supra,  p.  158. 


SECT.  V.}  Specific  -Legacies.  161 

form  any  other  conclusion  upon  the  present  case,  than  that  it  is  one 
which,  if  not  now  clearly  destitute  of  authority,  may  be  considered  to 
be  very  doubtful. (/) 

In  Bronsdon  v.  Winter,(g)  another  case  upon  this  subject,  A.  be- 
queathed to  B.  and  C.  "  the  sum  of  20001.  capital  stock  in  the 
South  Sea  Company."  The  testator  was  possessed  of  2000Z.  South 
Sea  stock  and  no  more,  at  the  time  of  making  his  will,  and  in  the 
months  of  February  and  March  next  afterwards,  he  sold  15001.  part 
of  the  2000J.  The  question  was,  whether  the  bequest  of  the  2000J. 
South  Sea  stock  was  to  be  considered  specific,  or  general  7  And  Fer- 
ney,  M.  R.  determined  it  to  be  general.  Some  stress  (said  he)  has 
been  laid  upon  the  words  "the  sum"  of2000Z.  in  the  will,  as  if  by 
them  the  testator  meant  that  quantity  of  stock,  only.  But  I  think 
no  weight  is  to  be  laid  on  that,  for  if  he  had  -said  20001.  South'  Sea 
stock,  that  would  equally  express  quantity,  and  any  2000/.  stock 
would  answer  this  legacy ;  for  one  stock  does  not  differ  from  ano- 
ther, though  one  moveable  does  differ  from  another,  and  it  is  ad- 
mitted that  if  the  testator  had  possessed  no  stock,  the  executors  must 
have  bought  20001.  stock,  which*  shows  that  any  20001.  stock  would 
satisfy  this  bequest.  The  fact,  as  -proved,  is,  that  though  nothing 
particular  is  mentioned  in  the  will  to  make  the  legacy  of  the  stock 
specific,  yet  the  testator,  at  the  time  of  making  his  will,  had  the  pre- 
cise quantity  of  stock.  Here  seems  the  stress  of  this  case.  But  the 
testator  has  not  used  words  to  make  it  specific.  And  if  legacies 
are  to  be  specific  or  not,  from  the  testator's  manner  of  wording  them, 
and  the  natural  description  would  have  been. by  words  different  from 
what  are  here  used,  why  should  the  Court,  from  the  circumstance  of 
the  testator  having  just  2000Z.  stock,  determine  that  he  meant  that 
individual  stock? 

So  also  in  the  Bishop  of  Peterborough  v.  Mortlock,(h)  G.  master 
of  Clare  Hall,  Cambridge,  after  giving  several  pecuniary  legacies, 
bequeathed  "to  A.  IOQL;  to  B.  100/.;  to  Storey's  Hospital  3400Z. 
in  the  three  per  cents  ;  the  annual  dividends  of  which  to  be  every 
half  year  divided  betwixt  four  widows."  It  appeared  that  the  tes- 
tator, at  the  times  of  making  his  will  and  of  his  death,  had  22001. 
only  standing  in  his  name  in  the  three  per  cent  annuities  ;  of  which 
150L  belonged  to  other  persons,  and  that  the  remaining  20501. 
were  his  own.  There  being  a  deficiency  of  assets,  the  question  was, 
whether  the  legacy  of  3400Z.  in  the  three  per  cents  was  to  be  con- 
sidered a  specific  or  general  legacy?  And  the  Lord  Chancellor 
thus  expressed  himself:  "  In  this  case  I  confess  it  does  not  appear 
to  me  that  there  is  any  question  of  difficulty.  On  the  face  of  the 
will,  it  is  clearly  a  pecuniary  legacy ;  and  if  it  be  to  be  turned  into 
a  specific  legacy,  it  must  be  upon  other  circumstances.  The  form 
of  the  bequest  is  to  give  34001.  in  the  three  per  cents.  The  testator 
has  been  definite  in  applying  the  quota  of  maintenance  to  each 
widow.  On  the  face  therefore  of  the  will  it  is  purely  pecuniary,  and 
extends  only  to  a  direction  to  buy  such  a  sum  in  such  a  stock.  But 
it  is  said,  that  although  this  may  be  so  in  the  words,  yet  that  circum- 
stances may  be  given  in  evidence  as  to  the  state  of  the  funds  in  his 

/)  See  Lord  Thurlovfs  observations  upon  this  case,  2  Bro.  C.  C.  113. 
§•)  Ambl.  57.  (K)  1  Bro.  C.  C.  565. 

VOL.  I.  X 


1G2  Specific  Legacies.  [Cn.  III. 

possession  at  the  time  of  making  the  will ;  and  that  if  he  had,  at  the 
time  of  making  his  will,  more  stock  than  that  which  he  devised,  it  will 
be  a  specific  legacy.  But  this  is  not  the  only  case  in  which  the 
Co*urt  has  been  used  to  make  this  inference.  When  I  say  this,  I  do 
not  mean  to  be  understood  that  the  Court  has  laid  it  down  as  a  po- 
sitive rule  of  law,  but  merely  as  an  interpretation  of  evidence.  In 
all  cases  where  the  legacy  is  considered  as  specific,  the  Court  takes 
for  granted  that  the  testator  meant  that  particular  fund,  although 
he  may  be  mistaken  in  the  description  of  it.  Now  this  intention 
ought  to  be  made  out  by  strong  circumstances,  which  certainly  do 
not  exist  in  the  present  case.  I  am,  therefore,  of  opinion,  that  this 
is  a  pecuniary  legacy ;  it  must  consequently  abate  in  proportion 
with. the  rest." 

The  next  case  upon  'the  present  question  is  Webster  v.  Hale.(i) 
The  testator  bequeathed  to  his  executors  in  trust  the  sum  of  8000Z. 
stock  in  the  five  per  cent.  Irish  fund  for  the  separate  use  ofB.;  also 
"  the  sum  of  4000Z.  in  the  three  -per  cent,  reduced  stock,  to  be  paid 
to  her  as  soon  as  possible."  He  further  gave  to  C.  .10001.  East  In- 
dia stock,  and  to  D.  20001.  three  per  cent,  reduced  stock,  to  be  paid 
to  her  as  soon  as  possible ;  to  E.  the  testator  also  bequeathed  10001. 
in  the  four  per  cent,  stock.  It  was  one  of  the  questions  whether 
these  legacies  were  general  or  specific  *?  And  Sir  JVilliam  Grant, 
M.  R.  decided,  that  they  were  general  or  pecuniary  legacies ;  ob- 
serving, that  after  the  cases  which  had  been  decided,  it  was  impos- 
sible to  say  that  those  were  not  pecuniary  legacies. 

A  case,  however,  in  addition  to  that  of  Avelyn  v.  Ward,(k]  must 
be  adverted  to,  which  cannot  be  reconciled  with  the  authorities  be- 
fore stated.  The  case  is  Jeffreys  v.  Jeffreys,  determined  by  Sir  John 
Fortescue,  M.  R.  and  which  was  to  the  following  effect : 

.#.,  at  the  date  of  his  will,  having  21021.  3s.  bank  annuities,  and 
2000Z.  East  Indiastock,  bequeathed  to  his  two  daughters,  B.  and  C., 
"  21021.  3s.  capital  stock  in  the  Bank  of  England,  and  20001.  ster- 
ling capital  stock  in  the  English  East  India  Company,  to  be  equal- 
ly divided  between  them."  The  testator  afterwards  sold  1021.  3s. 
of  the  bank  stock ;  so  that  he  was  possessed  at  his  death  of  only 
2000 J.  bank  stock,  and  20001.  East  India  stock.  The  question  was, 
whether  the  legacies  were  specific  *?  Arrd  his  Honour  decided  in  the 
affirmative,  from  the  circumstance  of  the  equality  in  amount  of  the 
stocks  bequeathed,  with  the  quantity  in  possession  of  the  testator 
when  he  made  his  will.(i) 

It  appears  from  the  report  of  the  judgment  in  the  last  case,  that 
the  Master  of  the  Rolls  endeavoured  to  avoid  the  pressure  of  such  of 
the  several  authorities  .before  stated  as  were  cited  on  the  occasion 
to  show  that  the  legacies  were  general,  by  assigning  different  reasons 
as  the  grounds  of  the  decrees  pronounced  in  them.  It  is  obvious, 
however,  from  the  perusal  of  those  cases,  and  the  others  before  set 
forth,  that  the  principle  upon  which  the  judgments  were  pronounced, 
was  a  want  of  words  referring  to  the  identical  stock  existing  at  the 
dates  of  the  wills,  or  an  absence  of  manifest  intention  in  the  testa- 
tors that  they  alluded  to  it,  and  not  the  mere  circumstance  of  their 

(0  8  Ves.  410.  413.  415.  and  see  9  Ves,  146. 

(*)  Ante,  p.  160.  (/)  3  Atk.  120. 


SECT.  V.]  Specific  Legacies.  163 

possessing  or  not  possessing  stock  at  those  periods  of  any  particular 
amount.  It  is  presumed,  therefore,  that  the  case  of  Jeffreys  v.  Jeff- 
reys cannot  be  considered  of  any  authority. 

But  it  is  a  consequence  from  what  has  been  said,  that  if  it  clearly 
appear,  from  reference  made  to  the  stock  by  additional  expression, 
that  it  alone  was  intended  to  be  the  subject  of  disposition,  the  lega- 
cy will  be  specific,  although  the  form  of  bequest  be  of  a  sum  of  money 
in  that  species  of  stock,  as  if  the  words  were,  "  500Z.  in  my  stock  of 
three  per  cent.  consols,(m)  or  5001.  which  /  now  have  in  Navy  five 
per  cents" 

Thus  i-n  Humphreys  v.  Humphrey  s,(ri)  the  testator  being  possess- 
ed of  5000/.  stock,  bequeathed  to  JL.  and  B.  as  follows  :  "  All  the 
stock  which  /  have  in  tlje  three  per  cents,  being  about  50001.  except 
5001,  which  I  give  to  C."  Lord  Thurlow  decided,  that  the  stock 
the  testator  had  was  specifically  given ;  so  that  there  was  an  ademp- 
tion  pro  tanto  in  consequence  of  his  having  sold  2000Z.  part  of  it. 

The  intention,  however,  of  the  testator  to  bequeath  specifically, 
must  not  be  inferred  by  conjecture,  nor  upon  a  term  which  is  capa- 
ble of  a  double  intendment,  when  the  form  of  bequest  is  general ;  for 
a  court  of  equity  requires  the  intention  to  give  specifically,  either  to 
be  expressed  or  to  be  clearly  and  indisputably  manifested  from  pe- 
rusal of  the  whole  will.  If,  then,  the  legacy  be  not  described  as 
part  of  the  stock  belonging  to  the  testator,  but  be  merely  a  gift  of 
stock  in  some  one  of  the  public  funds,  and  the  executor  be  directed 
to  transfer  the  sum  in  stock  to  the  legatee ;  the  direction  of  trans- 
fer will  not  make  the  legacy  specific,  which  is  in  other  respects  ge- 
neral ;  and  for  this  reason :  the  testator  may  have  meant  either  a 
transfer  of  the  particular  stock  which  he.  l)ad  when  his  will  was  made, 
or  that  his  executor,  should  purchase(o)  the  stock)  and  transfer  it -to 
the  legatee.  The  "intention,  therefore,  to.be  inferred  from  the  direc- 
tion of  transfer  is  equivocal,  and  does  not  amount  to  a  degree  of  cer- 
tainty sufficient  to  make  tlic  legacy  specific. 

Thus  in  Sibley  v.  Pewy,(p)  A.  directed  his  trustee  and  executor, 
"within  three  months  after  A?s  deceasef  to-  transfer  1000Z.  stock  in 
the  public  funds  commonly  styled  the  three  per  cents  consolidated,  to 
each  of  his  relations  (naming  them)  if  living  at  his  death,  and  to  the 
issue  of  such  of  them  as  should  be  then  dead."  Lord  Eldon  decided, 
that  this  legacy  was  general,  upon  the  general  principle  or  rule  of 
construction  ;  althojugh  he  had  no  doubt  in  private,  that  in  directing 
a  transfer  of  stock,  the  testator  meant  to  give  the  stock  which  he 
had  ;  but  that  there  was  no  case  deciding  that  a  legacy  was  specific, 
without  something  marking  the  specific  thing,  the  very  corpus; 
without  describing  it  as  standing  in  the  testator's  name,  or  by  the 
expression  "  my  stock." 

From  the  majority  of  the  cages  which  have  been  produced,  the 
rule  of  equity  may  be  considered  to  be  thus  settled : 

FIRST,  that  whether  a  legacy '  be  given  generally  of  stocks  or  an- 
nuities, or  of  stocks  or  annuities  in  particular  funds,  without  further 
explanation ;  the.  fact  of  the  testator  happening  to  possess  stocks  or 

( m).  4  Ves.'750.       (ra)  2  Cox,  184.       (o)  See  Fountame  v.  Tyler,  infra,  165. 
(ft)  7  Ves.  523.  529.  and  see  Lord  Eldorfs  observations  in  Deane  v.  Test,  9  Vcs. 
152.  stated  infra,  p.  168. 


164  Specific  Legacies.  [Cn.  III. 

annuities  in  the  funds  described  will  not  make  the  bequest  specific. 
And 

SECONDLY,  that  if  a  clear  intention  appear  from  the  will  that  the 
testator  meant  to  bequeath  the  identical  stock  or  annuities  he  was 
possessed  of  at. the  date  of  it  (although  he  have  not  expressly  decla- 
red that  intention,  nor  referred  to  the  stock,)  such  intention  will 
constitute  the  bequest  specific  ;  an  instance  of  which  was  before 
produced,  where  the  executor  was  directed  to  sell  the  stock  be- 
queathed to  him  in  the  form  of  a  general  legacy. (q) 

Another  instance  established  to  be  a  clear  demonstration  of  inten- 
tion to  give  the  identical  stock  or  annuities,  although  the  bequest  in 
part  was  in  the  form  of  a  general  legacy,  occurred  where  a  testator, 
possessing  stock  or  annuities  at  the  date  of  his  will,  disposed  of  them 
in  fractional  parts,  in  giving  one  of  which  he  adopted  such  expres- 
sions of  reference,  as  to  raise  a  clear  inference  that  he  intended  the 
identical  stock  or  annuities  he  then  possessed. 

Accordingly  in  Sleech  v.  Thorington,(r)  one  of  the  questions  arose 
upon  the  following  bequest.  The  testatrix  gave  241 3Z.  13s.  to  dif- 
ferent persons  in  several  parcels  and  in  differe'ht  proportions,  by  the 
name  of  South  Sea  annuity  stock,  or  South  Sea  annuities,  and  be- 
queathed to  her  coachman  the  remaining  131.  13s.  South  Sea  stock, 
"  standing  in  her  name."  The  testatrix  died  possessed  of  no  more 
than  2157Z.  12*.  Id.  South  Sea  annuities.  The  question  was,  whe- 
ther the  deficiency  should  be  made-  up  out  of'  the  general  assets, 
which  depended  upon  this,  whether  the  legacies  were  general  or 
specific  9  And  Sir  Thomas  Clarke,  M.  R.  held  them  to  be  specific, 
and  therefore  not  entitled  to  a  contribution  from  the  general  personal 
estate.  He  said  that  the  last  bequest,  in  •  favour  of  the  coachman 
was  a  specific  parcel  of  the  stock,  part  of  a  larger  sum  standing  in 
the  name  of  the  testator  ;  that  none  of  them  were -independent,  but 
all  connected,  from  the  original  bequest,  of  the  first  portion  of  the 
South  Sea  stock  to  the  last,  which  she  computed  to  be  a  residue, 
though  erroneously ;  that  the  legacies  were  connected  by  the  last 
being  given  by  way  of  remainder,  and  that  this  was  a  specific  be- 
quest of  such  an  individual  identical  thing,  as  the  testatrix  appre- 
hended she  had.(«)  He  also  said,  it  was  material  that  there  was  a 
direction  to  the  executors  to  sell,  and  convert  part  of  the  stock  into 
money ;  which  direction  it  was,  impossible  the  testatrix  could  have 
given,  if  she  meant  part  of  the  stock  should  be- purchased  with  her 
personal  estate.  That  would  have  been  a  vain  thing,  and  was  laid 
hold  of  in  Ashton  V.  Jlshton,(t]  which  was  in  point.  He  therefore 
decreed  as  .before  stated. 

The  last  case  was  followed  by  Stafford  v.-Horton,(u]  in  which  A. 
being  possessed  of  2001.  per  annum  bank  long  annuities,  and  other 
personal  estate,  bequeathed  to  B.  "  1001.  a  year  in  the  long  annui- 
ties ;"  also  to  C.  "  501.  long  annuities,"  and  to  D.  "  501.  long  annui- 
ties to  be  laid  out  in  charities  at.  his  discretion."  Lord  Thurlow 
conceiving  (as  Mr.  Brown  says)  that  the  legacies  were  specific,  ob- 

(?)  Ante,  p.  159. 

(r)  2  Ves.  sen.  561.  564.  and  see  Badrkk  v.  Stevens,  3  Bro.  C.  C:  431.  et  infra. 

(s)  See  Evans  v.  Trifi,  6  Mad.  91. 

(0  1  Forr.  152.     3  P.  Will.  383.  stated  suhra,  p.  159. 

(u)  1  Bro.  C.  C.  482.  ed.  by  Belt. 


SECT.  V.]  Specific  Legacies.  165 

served,  that  they  must  be  transferred  as  annuities,  and  ordered  C'.'s 
legacy  to  be  paid  to  him  in  long  annuities,  with  the  payments  which 
had  been  made  upon  it  subsequently  to  the  year  after  the  death  of 
the  testator. 

The  reason  why  Lord  Thurlow  conceived  that  those  legacies  were 
specific  does  not  appear.  They  (according  to  the  cases  before  stated) 
are  given  in  the  forms  of  general  bequests,  and  it  has  been  shown 
that  the  mere  circumstance  of  a  testator  having  stocks  or  annuities 
of  the  same  amounts  with  those  bequeathed  will  not  make  the  lega- 
cies specific.  His  Lordship,  therefore,  must  have  thought,  that 
these  legacies  were  given  as  fractional  parts  of  the  annuities  which 
the  testator  had  at  the  date  of  his  will,  and  were  consequently  spe- 
cific. But  that  rests  in  mere  conjecture,  for  there  are  no  expressions, 
nor  directions  as  in  Sleech  v.  Thorington,  demonstrative  of  the  testa- 
tor's intention  to  bequeath  in  parcels  the  identical  annuities  of  which 
he  was  possessed.  The  case  does  not  differ  from  Simmons  v.  Val- 
lance,(x)  and  it  is  conceived  that  ff  Lord  Thurlow  delivered  the 
opinion  ascribed  to  him,  it  cannot  be  supported,  but  it  may  be  rea- 
sonably doubted  whether  he  ever  delivered  such  an  opinion,  when 
the  incorrectness  of  the  report  and  the  order  pronounced  by  him  in 
the  cause  are  considered ;  for  if  he  had  conceived  the  legacies  to  be 
specific,  it  is  presumed  that  he  would  not  have  ordered  payment  to 
C.  of  what  had  only  been  received  in  respect  of  his  annuity  legacy 
subsequently  to  one  year  after  the  death  of  the  testator,  but  what- 
ever had  accrued  due  and  been  paid  since  the  testator's  decease. 

It  will  have  occured  to  the  reader,  that  in  the  preceding  cases 
wherein  bequests  of  stock'  were  decided  to  be  specific,  it  was  con- 
sidered essential  to  the  specific  bequests,  that  there  should  be  a 
clear  and  distinct  reference  to  the  corpus  of  the  'funds  of  which  the 
testator  was  possessed  at  the  date  of  his  will.  In  the  case  of  Parrott 
v.  Worsfold.(i)} ,  It  was  decided  by  Sir  Thomas  Plumer,  that  a 
bequest  of  "  all  other  stocks  or  funds  which  the  testator  might  be 
possessed  of  or  entitled  to  at  the  time  of  his  death"  after  a  prior 
specific  legacy,  was  general:  he  observed,  "the  ordinary  criterion 
of  a  specific  bequest  is,  that  it  is  liable  to  ademption;  that  if  the 
thing  bequeathed  is  once  gone,  it  is  lost  to  the  legatee.  That  cri- 
terion fails  here ;  for  it  would  equally  pass  stock  afterwards  acquir- 
ed. Can  it  be  said  that  a  will  made  now  can  contain  a  specific  be- 
quest of  what  may  be  bought  hereafter,  of  what  does  not  now  exist^? 
In  a  certain  sense  it 'may  be  said  that  legacies  of  this  kind  are 
specific ;  as  a  legacy  of  the  testator's  cattle,  or  all  his  personal  pro- 
perty at  his  death  ;  but  it  is  not  specific  unless  you  can  fix  on  the  in- 
'dividual  thing  given* 

But  in  the  recent  case  «f  Fountaine  v.  Tyler, (z)  it  has  been  de- 
termined, that  there  may  be  a  specific  bequest  out  of  stock  of  which 
'a  testator  is  .not  possessed  at  the  making  of  his  will,  but  pf  which  he 
may  be  possessed  at  his  death.  In  that  case  the  testator  willed,  that 
if  he  had  not  so  much  as  10,000if.  capital  stock  in  the  three  per  cents 
reduced  or  consolidated  bank  annuities,  that  his  (executors)  should 

{.r)  4  Bro.  C.  C.  345.  stated  supra,  p.  158. 

(y)  1  Jac,  ScWalk.  594.  601.  '  (2)  9  Price,  Ex,  Rep.  94. 


166  Specific  Legacies.  [Cn.  III. 

make  up  the  capital  sum  of  10,OOOJ.  in  the  reduced  or  consolidated 
bank  annuities,  or  one  or  both  of  them,  and  should  hold  the  same 
upon  trust  for  all  and  every  the  children  of  his  said  niece  Frances, 
late  wife  of  the  said  James  Fountaine,  who  should  be  living  at  the 
time  of  testator's  decease,  to  be  vested  interests  in  sons  at  twenty- 
one  and  daughters  at  twenty-one,  or  days  of  marriage;  he  directed 
that  until  the  legacy  should  become  vested,  the  executors  should 
apply  the  dividends  for  maintenance :  and  he  further  directed,  that 
in  case  there  should  not  be  any  child  who  should  obtain  a  vested  in- 
terest in  the  said  10,OOOJ.  it  should  fall  into  the  residue.  The  tes- 
tator had  at  the  time  of  his  -death  standing  in  his  name  9000Z.  three 
per  cent  reduced,  and  7.000/.  three  per  cent  consols.  The  bill  was  filed 
by  the  next  friend  of  the  infants  (the  plaintiffs,)  praying  that  the  de- 
fendant (the  executor)  might  be  ordered  to  transfer  10,000?.  three 
per  cent  reduced  or  three  per  cent  consols,  or  that  the  sum  might  be 
made  up  by  one"  or  both  of  the  sums  before  mentioned,  and  account 
for  the  dividends  from  the  time  t>f  the  testator's  death,  and  pay  there- 
out allowances  for  the  children's  maintenance.  The  Lord  Chief 
Baron  observed,  that  the  words  of  the  will  "  if  I  shall  not  have  so 
much  stock,  &c."  had  no  reference  certainty  to  the  stock  he  had  at 
that  time,  but  at  some  future  time,  and  the  most  appropriate  period 
that  could  be  assigned  was  the  death  of  the  testator  j  and  he  con- 
sidered the  legacy  in  the  will  as  much  a  specific  legacy  as  if  the 
testator  had  said,  "If  I  have  a  particular  horse  I  desire  it  may  be 
given  to  the  legatee  :"  the  reference  to  the  corpus  he  remarked  was 
clear  and  direct,  and,  if  that  corpus  should  be  found  among  his  as- 
sets, he  gives  a  portion  of  it;  referring,  clearly  to  his  possession  of 
the  thing  at  the  time  of  his  -death.  For  these  .reasons  the  Chief 
Baron  decided,  that  the- legacy  was  clearly  specific,  and  must  go  im- 
mediately to  the  legatees  from  the  time  of  the  testator's  death.  He 
admitted  that  if  the  testator  had  not  had  10,OOOZ.  in  the  stocks  spe- 
cified at  the  time  of  his  death,  it  would  have  been  in  that  case  a 
general  legacy  beyond  all  doubt.  Another  question  arose  in  this 
case,  whether  the  legatees  or  the  executors  had  the  right  to -elect  out 
of  what  fund  the  legacy  was  to  be  paid.  And  the  Chief  Baron, 
after  noticing  the  novelty  of  th.e  point,  remarked,  mat  as  the  exe- 
cutors were  to  make  up  the  deficiency  of  the  stock  either  in  one 
or  both,  as  they  should  think  best,  .they  were  therefore  empowered 
by  the  testator  to  deal  %vith  it  according  to  their  discretion  ;  and  he 
could  not  take  that  discretion  away  from  them  unless  there  were  any 
danger  of  their  abusing  it  to  the  prejudice  of  the  infants.. 

4.  The  next  advance  towards  a  uegular  specific  legacy  occurs 
when  annuities  or  money  are  given  out  of  stock,  which  the  testator 
was  possessed  of  at  the  date  of  his  will.  Such  bequests  are  notprimd 
facie  specific  in  the  ordinary  acceptation  of  the  term,. but  range  in 
the  class  of  legacies  of  quantity  in  the  nature  'of  specific  legacies 
mentioned  in  the  beginning  of  this  chapter.  This,  then,  is  a  species 
of  legacy  between  a  general  and  specific  bequest.  The  testator's 
intention  is  its  basis.  It  assumes  that  the  testator  meant  to  give  a 
general  legacy,  with  a  charge  upon  a  particular  fund  for  its  payment, 
not  intending  its  existence  should  depend  upon  the  validity  or  con- 


SECT.  V.]  Specific  Legacies.  167 

tinuance  of  such  fund,(a)  for  the  terms  of  the  bequest  are  literally 
complied  with  by  sale  of  so  much  of  the  stock  as  is  required  to  an- 
swer the  legacy,  so  that  it  cannot  with  certainty  be  inferred  from  the 
form  of  bequest  that  the  testator  intended  to  bequeath  part  of  his 
stock  in  specie,  but  as  a  fund  generally,  first  to  answer  the  legacy. 
Hence  it  would  seem,  that  if  there  be  nothing  expressive  of  the  tes- 
tator's intention,  except  what  arises  from  a  mere  bequest  of  money 
or  annuities  out  of  the  testator's  stock,  the  legacy  will  not  be  spe- 
cific, but  "in  the  nature  of  a  specific  legacy  before  described;  (6) 
which  rule  of  construction  prevails  with  respect  to  bequests  of  money 
out  of  debts  or  securities,  as  will  appear  when  we  treat  of  such,  lega- 
cies in  the  seventh  section. 

In  Kirby  v.  Pottered)  A.  bequeathed  thus :  "  my  intention  and 
will  by  the  codicil  added  thereto  is  to  give  to  B.  a  legacy  of  WOOL 
out  of  my  reduced  •  bank  annuities  three  per  cents  by  my  executor, 
within  one  month  after  my  decease,  for -his  integrity,  sobriety,  and 
good  behaviour,  and  deserving  in'  every  respect;  the  question  was, 
whether  the  bequest  was  general  or  specific  1'  And  Lord  Alvanley, 
M.  R.» determined,  that  it  was  the  former,  and  that  B.  was  entitled 
to  WOOL  sterling,  and  not  to  WOOL  annuities  only  ;  observing,  that 
whenever  there  is  a  legacy  of  a  given  sum,  there  must  be  positive 
proof  that  it  does  riot  mean  sterling  money,  in  order  to  make  it  spe- 
cific :  that  where  the  phrase  is  "  lOOQl.  out  of  my  reduced  bank  an- 
nuities,"'the  sense  was,  that  the  executor  should  raise  1000Z.  by  sell- 
ing so  much  of  that  stock  ;"  and  the  rule  was,  that  no  legacy  should 
be  held  specific,  unless  demonstrably  so  intended. 

In  Deane  v.  Test,(d\(a.  case  of  great  complexity,)  Lord  Eldon  ap- 
pears to  confirm  the  last  decision,  so  far  as  regards  the  prima  facie 
construction  to  be  put  upon  the  words  there  used.  In  the  case  of 
Deane  v.  Test,  A.  bequeathed  a  variety  of  legacies  of  stock,  in  stock, 
out  of  stock,  and  out  of  the  dividends  of  stack.  The  first  of  the  be- 
quests was  to  B.  for  life  of"  the  interest  of  4000Z.  stock  in  the  four 
per  cents  consolidated  annuities  in  the  Bank  of  England."  And  after 
the  death  of  B.  he  gave  *'  the  above  4000L  consols  annuities  which 
he  mentioned  before,  the  fund  for  paying  B.'s  annuity"  to  the  chil- 
dren of  his  sister  C.  equally,  with  benefit  of  survivorship,  among 
them,  if  any  died  under  twenty-one.  And  he  in  like  manner  gave 
to  those  children  "  an  additional  sum  of  2000L  more,  to  be  paid  out 
of  the  four  per  cent  consolidated  annuities  in  the  Bank  of  England," 
in  equal  shares,  &c.  Tne  question  was,  whether  these  legacies 
were  specific  or  general  ?  An.d  Lord  Eldon  determined  that  they 
were  general,  saying,  that  he  was  authorized  by  the  case  of  Kirby  v. 
Potter,  to  declare  that,  upon  the  words  used  by  this  testator,  the 
legacy  to  be  paid  out  of  the  four  per  cent  annuities  ought  prima  facie 
to  be  taken  as  a  bequest  of  a  sum  of  2000£.  sterling,  with  a  direction 
out  of  what  fund  it  was  to  be  discharged. 

In  the  following  particulars  Lord  Jllvanley  seems  to  have  express- 
ed himself  too  forcibly  in  the  case  of  Kirby  v.  Potter,  viz.  "  that 
whenever  there  is  a  legacy  of  a  given  sum,  there  must  be  positive 
proof  that  it  does  not  mean  sterling  money  in  order  to  make  it  spe- 

(a)  Sadler  v.  Turner,  8  Ves.  617,  624,  stated  infra,  171.      (b)  Ante,  p.  165. 
.(c)  4  Ves.  748.  (d)  9,Ves,  146,  152. 


168  Specific  Legacies.  £ CH.  III. 

cific."  To  this,  it  is  presumed,  Lord  Eldon  alluded  in  those  passa- 
o-es  of  his  judgment  in  Deane  v.  Test,  where  he  qualified  his  appro- 
bation of  Kirby  v.  Potter,  by  such  words  as  "without  carrying  it  to 
the  extent  of  Kirby  v.  Potter  ;"(e]  "  and  I  use  the  authority  of  Kirby 
v.Potterno  further  than  that;"(/)  for  his  Lordship  thought  less  than 
positive  proof  of  intention  would  be  sufficient  to  repel  the  primn  facie 
construction  of  the  words,  viz.  such  an  intention  appearing  upon  the 
whole  will,  as  to  satisfy  the  mind  of  a  judge,  that  by  the  words  "  out 
of,  &c."  the  testator  did  not  mean  to  give  a  money  legacy,  but 
the  "whole  or  part  of.  his  identical  stock  or  annuities  specifically. (g) 
His  Lordship  admitted,  that  by  such  words  the  prima  facie  intention 
was  to  give  a  money  legacy  :  a  settled  rule  of  construction  to  which, 
so  qualified,  it  was  wholesdme  to  adhere,  "  until  driven  out  by  strong, 
solid,  and  rational  interpretation,  put  upon  plain  inference  drawn 
from  the  rest  of  the  will. "(h).  He  then  observed,  that  minute  criti- 
cisms would  not  Vary  the  primd  facie  rule  of  construction  :  and  he 
expressly  guards  against  "  going  upon  conjecture  met  by  conjecture, 
and  plausible  argument  met  by  plausible  argument,"  to  alter  the 
prima  facie  meaning  of  the  words. now  under  consideration,  (fy 

From  the  decrees  pronounced  in  the  last. cases  by  two  such  able 
Judges,  the  following  conclusion  may  probably  be  drawn  as  a  guide 
upon  questions  of  this  nature  : 

That  a  sum  of  money  bequeathed  out  of  particular  stock  or  an- 
nuities, is  primd  facie  to  be  adjudged  a  money  legacy,  but  liable  to 
be  considered  a  specific  bequest  of.  so  much  of  the  identical  stock 
or  annuities  which  the  testator  had,  when  a  clear-  intention  appears 
upon  other  parts  of  his  will,  that  he  so  intended ;  of  which  inten- 
tion we  shall  now  proceed  to  give  some  instances,  first  remarking, 
that  there  seems  to  be  no  difference  whether  the  leg'acy  be  of  money 
out  of  stock,  or  of  a  personal  annuity  out  of  the  dividends  of 
stock.(Jk) 

In  Drinkwater  v.  Falconer,(l)  .#,  having  400Z.  new  South  Sea  an- 
nuities, and  4001.  East  India  bonds,  bequeathed- "  to  his  friend  and 
servant  B.  101.  per  annum  for  life,  to  be  paid  out  of  my  dividends 
of  4001.  in  the  joint  stock  of  South  Sea  annuities,  now  standing  in 
the  Company's  books  in  my  name,  by  half  yearly  payments,  and  he 
thereby  charged  his  said  annuity,  stock  with  payment  thereof:  and  I 
give  to  C.  my  4001.  East  India  stock,  and  my  4001.  joint  stock  in 
South  Sea ,  new  annuities^  .(subject 'to  the  payment  of  the  said  an- 
nuity), to  D.  &c."  And  Sir  Thomas  Clarke,  M.  R.  decided,  that 
all  those  legacies  were  specific. 

In  the  last  ease,  the  testator  clearly  showed -an  intention  upon  the 
face  of  his  will,  specifically  to  dispose  of  his  identical  East  India 
stock  and  South  Sea  annuities,  from  the  manner  in  which  the  whole 
were  bequeathed ;  but  if  the  legacy  to  J3.  had  not  been  .explained 
by  the  legacy  to  _D.  it  would  seem  that  from  the  form  of  the  bequest 
to  B.  it  must  have  been  considered  general,  according  to  the  cases 
of  Kirby  v.  Potter,  and  Deane  v.  Test ,  before  stated,(m)  viz.  of  an 
annuity  for  life,  the  dividends  of  the  stock  being  .merely  pointed 

(09  Ves.  152.  (/•)  Ibid.  154. 

(£•)  See^tf.  General  v.  Grote,  3  Meriv.  316,  stated  infra.  (A)  9  Ves.  152. 

(i)  9  Ves.  154.        (£)  ^bid.  153.        (/)  2  Ves.  sen.  623.         (m)  Ante,  p.  167. 


SECT.  V.  Specific  Legacies.  169 

out  as  the  fund  out  of  which  it  was  first  to  be  paid,  and  in  this 
respect  resembling  the  case  of  Mann  v.  Copland,  before  also 
stated,  (n)  Again — 

In  Morley  v.  Bird,(o)  the  testator  gave  all  his  money  in  the 
stocks,  mortgages,  debts,  goods,  chattels,  and  every  thing  he  died 
possessed  of,  to  B.  for  ever,  upon  condition  that  he  paid  to  the  four 
daughters  of  C.  "  4001.  out  of  TOO/,  now  lying  in  the  three  per  cent 
consolidated;"  and  the  legacy  of  400/.  was  held  to  be  specific. 

The  last  decision  may  be  ascribed  to  the  intention  to  be  inferred 
from  the  circumstance  of  the  legacy  of  4001.  being  given  out  of  the 
TOO/,  three  per  cent  consols,  specifically  bequeathed  to  B.;  the 
Court  probably  considering  the  400/.  as  so  much  excepted  out  of 
the  7001.  annuities,  viz.  a  division  of  the  identical  TOO/,  annuities, 
between  B.  and  the  children  of  C.  and  similar  to  the  case  of  Long 
v.  Short  before  mentioned. (p) 

5.  The  instances  which  have  been  produced  of  general  legacies 
out  of  stock  or  annuities,  were  those  where  the  legacies  were  ex- 
pressly given  out  of  such  stock  or  annuities.  But,  when  they  are 
not  so  expressly  given,  they  will  be  equally  general,  although  stock 
or  annuities  be  mentioned  or  referred  to,  as  the  then  or  the  supposed 
then  situation  of  the  money  bequeathed,  it  being  apparent  that  the 
thing  given  is  not  the  identical  stock  or  annuities,  but  the  money; 
and  that  the  circumstance  of  the  money  being  or  continuing  in  the 
stock  or  annuities,  is  no  ingredient  in  the  essence  of  the  bequest, 
nor  a  condition  upon  which  it  was  intended  to  depend.(g)  As  proof 
of  this — 

In  Raymond  v.  Brodbelt,(r)  A.  late  of  Jamaica,  reciting  in  his 
will,  that  he  had  remitted  several  sums  of  money  to  England,  which 
he  had  directed  to  be  invested  in  government  funds,  and  which  he 
believed  had  been  laid  out  either  in  three  per  cent  bank  annuities,  or 
in  three  per  cent  consols ;  and  also  that  it  was  his  intention  that  the 
provisions  for  his  younger  children  should  be  by  equal  portions  of  such 
bank  annuities  in  which  the  said  monies  had  then  been  invested ; 
if  therefore  the  sums  he  had  then  invested  or  might  do  before  his 
death,  should  not  be  sufficient  for  the  purposes  therein  mentioned,  he 
authorized  his  executors  to  invest  a  sufficient  part  of  his  estate  in 
the  purchase  of  so  much  more  bank  annuities  of  the  same  kind  as  he 
had  then  already  purchased,  as  would  be  sufficient  to  answer  the 
purposes  in  his  will,  and  after  mentioned.  A.  then  bequeathed  to 
his  executors  10,000/.  current  money  of  Jamaica,  invested,  or  to  be 
invested,  by  them  in  the  public  funds,  pursuant  to  the  same  power, 
upon  trust  to  receive  the  dividends,  and  apply  a  sufficient  part  of 
them  for  the  maintenance  of  his  daughter  B.  until  marriage,  or  her 
age  of  twenty-one,  and  from  and  after  that  age  or  marriage,  upon 
trust,  to  receive  the  interest  and  dividends  of  the  said  10,000/.  and 
pay  the  same  to  B's  separate  use.  Arid  after  settling  the  10,000/. 
and  interest  upon  the  children  of  B.  and,  in  the  event  of  none, 
upon  her  husband,  being  the  survivor,  he  directed  that  if  his 
daughter  died  under  age  and  unmarried,  the  10,000/.  was  to  become 

(n)  Ante,  p.  153.  2  Mad.  223.  (o)  3  Ves.  628,  631. 

(fi)  Ante,  p.  152.  1  P.  Will.  403.  (?)  See  infra,  sect.  7.  pi.  2.  p.  179. 

(r)  5  Ves.  199. 
VOL.  I.  Y 


170  Specific  Legacies.  [Cn.  II. 

part  of  his  residuary  estate.  The  testator  also  bequeathed  to  his 
executors  another  *wm  of  10,OOOZ.  of  current  money  of  Jamaica,  in- 
vested in  the  public  funds  pursuant  to  the  said  power,  upon  the  same 
trusts,  in  favour  of  his  daughter  C.  her  children  and  husband,  if  she 
left  one,  as  were  declared  in  favour  of  his  daughter  B.;  with  a 
similar  direction  that  the  last  mentioned  10,OOOZ.  should  fall  into  the 
residue  if  C.  died  under  age  and  unmarried ;  which  residue  he  gave 
to  his  son  D.  and  appointed  him  executor.  Prior  to  *the  date  of  the 
will,  the  testator  had  made  several  remittances  to  England,  to  be 
laid  out  in  bank  three  per  cent  annuities,  which  were  accordingly 
invested.  He  also  after  his  will,  made  other  remittances,  which 
were  placed  out  upon  government  securities,  and  at  his  death  there 
were  standing  in  his  name  15,500f.  three  per  cent  consols,  and  795J. 
four  per  cents.  Upon  the  bill  of  the  legatees  and  their  husbands 
against  D.  praying  the  transfer  of  a  moiety  of  the  15,500]?.  three  per 
cent  consols  and  a  moiety  of  the  795Z.  four  per  cents  to  the  ac- 
countant general,  in  trust,  for  B.  during  her  life,  and  at  her  death, 
upon  the  other  trusts  of  the  will,  and  that  D.  might  lay  out  so  much 
of  the  testator's  personal  estate  as,  with  the  value  of  a  moiety  of  the 
stock,  according  to  the  prices  which  the  same  bore  at  the  time  of  his 
death,  would  be  equal  to  the  sum  of  10,OOOZ.  Jamaica  currency,  in 
the  purchase  of  three  per  cent  consols,  upon  the  same  trusts,  and 
praying  similar  relief  on  behalf  of  C.  and  her  husband;  it  was 
insisted  by  D.  that,  according  to  the  true  construction  of  the  will, 
the  amount  of  the  current  money  which  was  invested  in  15,500?. 
three  per  cent  consols  and  795Z.  bank  four  per  cents,  was  to  be  con- 
sidered as  applied  in  part  payment  of  the  legacies,  and  therefore 
that  the  stock  ought  to  be  received  in  part  satisfaction  of  them,  as 
and  for  the  sum  of  16,377f.  7*.  6d.  Jamaica  currency,  the  amount  of 
the  current  money,  which  was  laid  out  in  the  purchase  of  such  stock. 
But  Lord  Rosslyn  said  there  was  nothing  fluctuating  in  either  le- 
gacy; and  that  each  must  be  10,OOOJ.  currency;  that  the  legatees 
could  have  neither  more  nor  less.  "  Suppose  (continued  his  Lord- 
ship) the  investments  (the  value  of  the  stock  purchased)  had  exceed- 
ed 20,0001.  currency,  the  legacies  would  have  been  limited.  If  the 
stock  had  risen  to  par,  the  legatees  could  not  have  more  than 
10,OOOZ.  currency.  If  the  legacies  were  specific,  the  value  of  the 
stock  of  necessity  must  be  ascertained  by  the  value  at  the  death  of 
the  testator.  But  there  is  nothing  specific  in  them.  They  are  lega- 
cies of  10,0001.  currency  each.  The  legatees  never  can  receive 
more,  nor  I  apprehend  less.  The  Master  was  directed  to  inquire 
what  sum  of  money  would  have  been  necessary  to  have  invested  in 
the  three  per  cents,  to  have  paid  10,OOOJ.  currency  to  each  of  the 
legatees  at  the  time  of  the  testator's  death,  and  to  compute  what  was 
due  to  the  plaintiffs  upon  their  legacies  with  interest,  according  to 
such  currency,  to  the  time  the  whole  investment  was  made,  upon 
such  sum  as  the  Master  should  find  would  have  been  necessary  for 
the  investment." 

It  is  obvious  from  the  whole  will  in  the  last  case,  that  the  testator 
meant  his  younger  children  money  legacies  of  10,OOOZ.  each,  Ja- 
maica currency,  which  were  to  be  invested  in  the  English  funds. 
The  bequests  were  of  money,  not  of  stocks,  as  also  appeared  from 


SECT.  VI.]  Specific  Legacies.  171 

the  directions,  that  if  the  stock  purchased  with  the  testator's  own 
remittances  during  life,  should  not  be  sufficient  to  answer  the  lega- 
cies, his  executors  should  purchase  the  deficit  of  stock  with  his 
general  personal  estate.  The  intention,  therefore,  of  the  testator 
being  clear,  to  give  to  such  legatee  10,OOOZ.  worth  of  stock,  accord- 
ing to  the  currency  of  Jamaica,  his  afterwards  mentioning  the  stock 
in  which  the  money  was,  or  was  supposed  then  to  have  been  invest- 
ed, was  not  with  the  intent  of  making  those  legacies  depend  upon 
the  contingency  of  his  having  stock  at  his  death  sufficient  to  answer 
them,  but  merely  that  the  stock  which  had  been  purchased  by  him 
whilst  living,  should  be  the  primary  fund  for  their  payment,  so  as  to 
give  these  particular  legatees  a  lien  upon  it  in  preference  to  other 
general  legacies;  in  which  sense  alone  those  legacies  were  specific, 
according  to  the  proposition  laid  down  by  Lord  Rosslyn  in  his 
judgment,  "  that  there  is  a  general  legacy,,  and  attended  with  the 
qualifications  of  a  specific  legacy,  yet  with  an  appropriation  upon 
part  of  the  property,  and  that  is  the  case  here." 

Similar  to  the  last  case,  is  Lambert  v.  Lambert,(s)  determined  by 
Sir  William  Grant,  in  which  A.  bequeathed  as  follows  :  "  to  B.  the 
sum  of  12,OOOZ.  of  my  funded  property,  to  be  transferred,(t)  in  the 
name,  or  employed  as  he  shall  deem  most  beneficial  for  his  interest, 
by  my  executor,  &c.  To  C.  I  also  bequeath  the  sum  of  12,OOOZ.  to 
be  enjoyed  in  every  respect  as  in  the  case  of  B.  &c."  And  his 
Honour  decided  that  the  legatees  were  entitled  to  the  worth  of 
12,OOOZ.  each,  out  of  this  property,  or  to  have  it  divided  amongst 
them,  if  not  sufficient  to  pay  those  sums,  but  if  there  were  a  surplus, 
then  that  it  belonged  to  the  general  estate  of  the  testator. 

SECT.  VI.  COLONIAL  PROPERTY. 

The  like  principle  applies  to  cases  where  a  person,  having  pro- 
perty in  England  and  India,  gives  pecuniary  legacies,  but  postpon- 
ing their  payment  until  his  India  property  should  be  remitted  to 
England,  and  realized  or  invested  in  the  funds;  such  postponement 
will  not  make  the  legacies  specific,  so  as  to  depend  upon  the  cir- 
cumstance of  the  testator  having  at  his  death  property  in  India  to 
transmit  for  realization  or  investment ;  for  the  intention  was  only  to 
consult  the  convenience  of  his  estate,  and  not  that  the  legacies 
should  fail  if  he  left  no  funds  in  India  for  remittance;  as  they  would 
do,  if  specific,  (i.  e.)  consisting  of  so  much  of  the  testator's  property 
in  India  to  be  remitted  and  realized  or  invested.  These  points  will 
appear  from  Raymond  v.  Brodbelt  before  stated,  and  the  following 
case  : 

In  Sadler  v.  Turner, (u)  A.  in  disposing  of  his  property  in  the  East 
Indies,  gave  several  legacies,  among  which  were  two  in  the  follow- 
ing terms:  "I  give  to  A.  and  B.  (married  women)  1000Z.  each,  for 
their  sole  use  and  benefit,  which  legacies  1  direct  to  be  paid  so  soon 
as  my  property  in  India  shall  be  realized  in  England"  And  Sir 
Jlilliam  Grant  was  of  opinion  that  those  legacies  were  general, 
there  being  nothing  to  make  them  specific  out  of  the  estate  in  India, 

(s)  11  Ves.  607.  and  see  2  Bro.  C.  C.  18.  21.  1  Cox,  204.  4  Ves.  159. 

(£)  For  the  effect  of  a  direction  to  transfer,  see  Sibley  v.  Perry,  su/ira,  p.  163. 

(u)  8  Ves.  617.  624-. 


172  Specific  Legacies.  [Cn.  VI. 

and  dependant  upon  their  being  sufficient  property  in  that  country 
at  the  testator's  death. 

It  is  observable,  that  the  legacies  are  simply  of  sums  of  money. 
There  are  no  words  nor  plain  intention  to  give  to  the  legatees  any 
particular  parts  of  the  India  property  in  preference  to  other  portions 
of  it.  The  testator  meant  no  more  in  the  direction  of  payment  than 
to  consult  the  convenience  of  his  estate.  The  Court,  therefore,  justly 
observed,  that  in  the  absence  of  any  thing  to  make  the  legacies  spe- 
cific, they  must  be  general,  and  entitle  the  legatees  to  satisfaction, 
although  all  the  property  in  India  belonging  to  the  testator  should 
have  been  transmitted  to  England  during  his  life. 

And  although  a  testator,  having  property  in  England  and  India, 
give  legacies  to  the  persons  resident  in  each  place,  with  a  direction 
that  they  should  be  paid  out  of  the  assets  in  the  respective  countries 
yet  such  a  direction  will  not  constitute  the  legacies  specific ;  i.  e. 
confine  each  class  of  legatees  to  the  funds  in  the  country  where 
they  reside ;  but  the  whole  of  the  assets,  after  payment  of  debts, 
whether  in  England  or  India,  will  be  liable  to  their  demand :  the  di- 
rection of  payment  by  the  testator  being  nothing  more  than  what  the 
law  would  have  done  if  he  had  been  silent  on  the  subject.  Such 
were  the  opinion  and  decree  of  Lord  Kenyan,  M .  R.  in  Kirkpatrick 
v.  Kirkpatrick  (x). 

But  legacies  of  India  property  will  be  specific  in  all  cases,  where 
such  legacies  would  be  so,  if  of  English  personal  estate ;  and  con- 
sequently, the  same  observations  apply  to  them,  as  are  made  in  re- 
gard to  English  legacies  in  this  chapter  under  its  several  sections. 
It  shall  therefore  suffice  to  produce  in  this  place  but  one  instance  of 
specific  legacies  of  property  in  the  West  Indies. 

In  Nisbett  v.  Murray,(y]  A.  after  bequeathing  three  specific  dis- 
positions of  lands  and  slaves  in  the  Island  of  Jamaica,  gave  the  re- 
sidue of  his  real  and  personal  estates  in  the  said  island,  to  trustees 
to  sell,  and  remit  and  lodge  the  proceeds  and  all  other  monies  be- 
longing to  his  estate  in  safety  in  England ;  which  proceeds  and 
monies  he  bequeathed  in  sums  currency  to  several  persons.  It  was 
determined,  that  the  Jamaica  property  was  specifically  bequeathed. 
And  according  to  Page  v.  Leapingwell,(z)  before  stated,)(a)  the 
several  legatees  would  be  entitled  to  the  whole  fund,  in  exclusion 
of  other  legatees,  who  could  only  resort  to  the  testator's  assets  in 
England. 

Having  considered  what  forms  of  bequest  will  and  will  not  have 
the  effect  of  passing  to  the  legatee,  the  specific  stock  or  annuities 
which  the  testator  was  possessed  of  at  the  date  of  his  will,  the  sub- 
ject next  proposed  to  be  treated  upon,  is — 

SECT.  VII.     What  will  amount  to  Specific  Legacies  of  Debts* 
by  Simple  Contract,  or  secured  upon  Mortgages,  Bonds,  &c. 
The  distinctions  which  have  been  made  in  the  last  section  equally 
apply  to  the  present  subject,  and  especially  the  difference  between 
a  regularly  specific  legacy  of  a  debt  itself,  and  a  bequest  of  a  sum 
of  money  with  reference  only  to  the  debt,  for  payment  of  the  lega- 
cy Cited,  4  Ves.  153.  and  see  5  Ves.  156. 
(y)  5  Ves.  150.  (z)  18  Ves.  463.  (a)  Ante,  p.  154. 


SECT.  VII.]  Specific  Legacies.  173 

cy ;  this  being  a  bequest  in  nature  of  a  specific  legacy,  of  which  in- 
stances have  been  before  given. (6)  The  distinction  between  the 
two  kinds  of  specific  legacies  is  thus  expressed  by  Sir  William 
Grant :  "  The  same  legacies  may  be  specific  in  one  sense,  and  pe- 
cuniary in  another ;  specific,  as  given  out  of  a  particular  fund,  and 
not  out  of  the  estate  at  large ;  pecuniary,  as  consisting  only  of  defi- 
nite sums  of  money,  and  not  amounting  to  a  gift  of  the  fund  itself, 
or  any  aliquot  part  of  it."(c)  The  intention  of  testators  expressed 
or  inferred  from  their  wills,  is  the  only  requisite  in  these  cases ;  so 
that  whether  a  bequest  is  to  be  adjudged  a  specific  disposition  of 
an  identical  debt,  or  the  debt  is  to  be  considered  merely  as  the  fund 
out  of  which  it  is  to  be  first  satisfied,  and  the  legacy  to  be  paid  at 
all  events,  although  such  fund  fail,  is  a  question  resolving  itself 
into  the  testator's  intention.  When  the  intention  is  not  expressly 
declared,  but  to  be  inferred  from  the  context  of  the  will,  the  infer- 
ence must,  as  we  have  seen,(d)  be  found  upon  a  strong,  solid  and 
rational  interpretation  put  upon,  and  a  plain  inference  drawn  from 
such  will.  Minute  criticisms,  grounded  upon  consequences  drawn 
from  minor  circumstances  or  conjectures,  or  plausible  arguments, 
will  not  have  the  effect  of  making  the  bequest  specific,  when  the 
form  in  which  the  legacy  is  given  is  general. (e)  These  observations 
are  not  only  supported  by  the  authorities  stated  in  the  last  section, 
but  by  those  which  follow.  And, 

1.  What  will  be  a  specific  bequest  of  a  debt  or  security. 

Upon  this  subject  the  following  rule  of  construction  will,  it  is 
presumed,  be  found  correct ;  that  when  the  gift  of  the  legacy  is  so 
connected  with  the  debt  or  security,  as  that  the  gift  of  the  Jegacy 
and  of  the  debt  or  security  are  the  same,  the  intention  to  give  no- 
thing more  than  the  identical  debt  or  money  due  on  the  security  is 
apparent,  and  consequently,  the  legacy  will  be  specific.  First,  then, 
if  I  bequeath  to  B.  "  the  money  now  owing  to  me  from  A."  or  "  in 
the  hands  of  A, ;"(/)  or,  secondly,  if  A.  be  indebted  to  me  on  bond, 
and  I  bequeath  to  B.  "  the  money  due  to  me  on  the  bond  of  .#.,"  or 
"  the  interest  arising  from  or  upon  the  bond  of  A.  to  B.  for  life,  and 
to  C.  the  principal  of  the  said  bond ;"  or,  thirdly,  if  I  bequeath  to 
B.  "  my  mortgage,"  or  "  my  East  India  bonds  or  bond,"(g)  or  "  my 
note  owing  from  D."  or  "  my  note  in  the  hands  of  E.  ;"(&)  these 
several  bequests  will  be  specific,  because  in  the  first  class  nothing 
is  given  distinct  from  the  debt  owing  by  A.,  nor  in  the  second,  from 
the  identical  money  and  interest  secured  on  the  bond  of  A. ;  and  in 
the  third,  the  securities  themselves  are  specifically  given. 

In  Ashburner  v.  M'Guire,(i)  the  testator  bequeathed  to  his  sister 
B.  "  the  interest  arising  from  her  husband  C.'s  bond,  to  him  for 
principal,  3500Z.  sterling,"  for  life,  to  her  separate  use,  "  amounting 
to  175/.  sterling  per  annum.  Item,  he  bequeathed  the  principal  of 
the  said  bond  on  the  decease  of  B.  to  her  four  daughters,  &c.  to  be 
equally  divided  amongst  them."  And  Lord  Thurlow,  after  great 
consideration,  determined,  that  the  bond  was  specifically  given ;  that 

Ante,  p.  166.  (c)  3  Ves.  &  Bea.  5.  (d)  Ante,  p.  168. 

7  Ves.  523.  529. 

See  ante,  sect.  4.  p.  155.  and  Ellis  v.  Walker,  Ambl.  309. 
2  Ves.  sen,  563.  (A)  Ibid.  623.  (0  2  Bro.  C.  C.  108.  ^ 


174  Specific  Legacies.  [Cn.  III. 

it  was  legatum  debiti  ;  his  Lordship  observing,  that  when  the  testa- 
tor made  his  will,  35001.  were  due  to  him  from  C.  by  bond ;  that  he 
meant  to  relinquish  it  for  the  benefit  of  the  family,  not  by  way  of 
release  to  the  husband,  but  by  way  of  settlement;  and  that  this  debt, 
whether  it  turned  out  well  or  ill,  should  go  to  the  family  ;  the  in. 
terest  to  his  sister  for  life,  the  principal  among  her  daughters;  and 
consequently  the  legacy  must  be  considered  specific. 

UpOn  the  authority  of  the  last  case,  Lord  Mvariley,  M.  R.  decid- 
ed that  of  Chaworth  v.  Beech.(k]  There  A.  by  codicil  bequeathed 
to  B.  in  the  following  manner:  "Whereas  I  am  entitled  to  8000J. 
vested  in  the  bank  of,  &c.  for  which  sum,  payable  with  interest  at 
three  per  cent  one  month  after  sight  at  JV.,  I  have  the  promissory  note 
of  the  said  bankers,  now  I  give  and  bequeath  to  my  friend  B.  who 
lives  with  me,  the  before-mentioned  sum  of  8000?."  Before  the 
codicil  was  made,  A.  thus  indorsed  the  note :  "I  give  this  note  to  B. 
which  is  along  with  me,  for  the  love  and  regard  I  have  for  her." 
Upon  a  question  whether  this  bequest  was  general  or  specific,  it  was 
dertermined  that  the  legacy  was  specific,  in  consequence  of  the  in- 
dorsement made  upon  the  note  ;  his  Honour  observing,  "  that  when 
he  read  that  and  the  codicil,  the  latter  was  nothing  more  than  a  re- 
cognition of  the  indorsement  (testamentary)  made  upon  the  note ; 
and  with  all  the  anxiety  he  felt  not  to  hold  a  legacy  specific,  unless 
it  were  demonstrably  so,  it  was  impossible  not  to  say  that  this  testa- 
tor meant  to  give  the  note  itself,  with  all  the  interest  due  upon  it. 
But  if  there  had  been  no  indorsement  on  the  note,  then  even  upon 
the  will  itself,  and  the  case  of  dshburner  v.  M'Guire,  (which  is  the 
true  rule  upon  the  point,)  he  must  hold  that  the  legacy  was  that 
note,  and  nothing  else." 

The  last  case  was  immediately  followed  by  Innes  v.  Johnson,(l) 
which  was  to  the  following  effect :  A.  bequeathed  to  his  sister  C. 
the  interest  of  3001.  upon  bond  for  life,  and  after  her  death,  he  gave 
to  her  daughter  D.  the  interest  then  due  upon  the  said  bond,  to- 
gether with  the  principal,  to  be  at  her  disposal  at  twenty-one.  The 
testator  was  possessed  of  two  bonds ;  one  for  securing  3001.  and  the 
other  200Z.  And  Lord  Alvanley  was  of  opinion,  that  the  gift  was  a 
specific  legacy  of  the  bond  for  3001. ;  the  words  "  said  bond"  fixing 
the  bequest  to  that  identical  security  which  the  testator  was  possess- 
ed of  at  the  date  of  his  will.  Again, 

In  Pitt  v.  Camelford,(m)  the  form  of  bequest  was  thus:  A.  by 
codicil,  reciting  that  he  was  possessed  of  about  IQOOl.  navy  bills, 
gave  the  same  to  his  executor,  to  receive  the  interest,  and  to  lay  the 
same  out  in  the  funds  to  such  uses  as  his  daughter  B.  should  appoint. 
Lord  Thurlow  said,  that  if  ever  there  was  a  specific  legacy,  this  was 
so,  and  decreed  accordingly. 

So  also  in  Stanley  v.  Potter,(n)  A.  after  reciting  in  his  will  that  he 
had  lent  B.  20001.  who  had  executed  to  him  a  heritable  bond, 
charging  certain  lands,  &c.  with  the  payment  of  it  and  interest,  or 
an  annual  rent  of  1001.  for  the  same,  gave  and  devised  that  all  the 
said  annual  rent,  of  100Z.  sterling,  or  such  annual  rent,  less  or  more, 
as  by  the  law  for  the  time  being  should  correspond  to  the  said  prin- 

(*)  4  Ves.  555.  (A  4  Ves.  568. 

(m)  3  Bro.  C.  C.  160.  (n)  2  Cox,  180.  4  Ves.  559. 


SECT.  VII.]  Specific  Legacies.  175 

cipal  sum  of  2000Z.  and  all  the  said  lands,  &c.  in  security  to  trustees 
for  ninety-nine  years,  in  case  his  daughter  B.  so  long  lived,  upon 
trust  to  pay  to  her,  or  her  appointee,  for  life,  an  annuity  of  60Z. ;  and 
after  the  end  of  the  term,  and  in  the  meantime  subject  thereto  to  the 
use  of  C.  for  life,  &c.  The  testator  directed  his  trustees,  if  the  debt 
should  be  discharged,  to  invest  it  in  the  purchase  of  lands  to  be  set- 
tled upon  the  trust  and  uses  before  mentioned  and  referred  to  as  to 
the  yearly  rent,  and  to  place  the  2000Z.  till  such  purchase  could  be 
made,  on  government  securities,  and  pay  the  dividends  to  the  per- 
sons who  would  have  been  entitled  to  the  rents.  The  testator  re- 
ceived the  debt  himself,  and  delivered  up  all  securities;  and  the 
question  was,  whether  the  bequest  was  specific,  and  consequently 
adeemed.  And  Lord  Thurlow  decided  in  the  affirmative,  referring 
to  the  case  of  Jlshburner  v.  M'Guire. 

The  cases  which  have  been  cited  are  instances  of  bequests  of  the 
securities  with  the  money  due  upon  them.  They  are  strict  forms  of 
specific  legacies,  and  the  intention  to  bequeath  specifically  could  not 
be  more  clearly  expressed. 

So  also  in  Gillaume  v.  Adderly,(o)  the  testator  bequeathed  "  the 
sum  of  3348Z.  3s.  4d.  sterling,"  to  his  father  and  mother  for  their 
joint  lives,  and  during  the  life  of  the  survivor,  "which  said  sum"  he 
expressed  "  to  be  in  two  bills  drawn  by  the  presidency  of  Fort  Wil- 
liam, Bengal;  one  for  the  sum  of  1125^.,  the  other  for  2223Z.  3s.  4d., 
being  the  account  of  money  paid  into  the  treasury  of  Fort  William, 
on  account  of  the  investment  of  1782  and  3,  which  bills  are  now  lay- 
ing for  acceptance  at  the  India  house,  in  London"  Lord  Eldon 
said,  there  was  no  doubt  that  the  legacy  was  specific  ;  for,  continued 
his  Lordship,  the  testator,  taking  notice  that  the  bills,  in  which  that 
legacy  was  invested,  then  lay  for  acceptance  at  the  India  house,  and 
adverted  to  the  fact  that  the  identical  sum  would  be  received,  it  was 
impossible  to  say  that  it  was  not  Ugatum  debiti. 

It  appears  impossible  to  reconcile  the  case  of  Coleman  v.  Col&- 
man(p)  (a  decision  of  Lord  Rosslyn,)  with  the  authorities  before 
stated. 

In  that  case,  A.  reciting  in  his  will  that  he  was  possessed  of  a  bill 
of  exchange  drawn  in  his  favour  upon  the  East  India  Company,  and 
accepted  by  their  order,  and  entered  in  their  books  for  the  sum  of 
1500/.,  bearing  interest  at  three  per  cent,  gave  the  interest  of  the  bill 
to  his  wife  for  life,  and  directed  that  after  her  death  the  same  should 
be  sold,  and  the  money  equally  divided  among  several  nephews  and 
nieces,  with  survivorship  among  them  if  any  died  before  his  wife. 
And  Lord  Rosslyn  determined  that  this  was  not  a  specific  legacy. 

That  decree  was  founded  upon  an  inference,  which  his  Lordship 
drew  from  the  manner  in  which  the  bill  of  exchange  was  settled  by 
the  will,  viz.  that  the  testator  did  not  mean  so  to  give  it,  that  receipt 
by  him  of  its  amount,  during  his  life,  should  disappoint  the  bequest. 
But  this  inferential  argument  was  equally  applicable  to  the  case  of 
Pitt  v.  Camelford,  before  stated, (q)  and  yet  Lord  Thurlow  said,  that 
if  ever  there  was  a  specific  legacy,  that  was  so;  an  observation  which 
maybe  transferred  to  the  present  case.  Besides,  Lord  Rosslyn's  in- 
ference was  drawn  in  opposition  to  the  express  form  of  the  bequest, 

(o)  15  Ves.  384.  389.  (/z)  2  Ves.  jun.  639.          .  (?)  See  preceding  page. 


176  Specific  Legacies.  [Cn.  III. 

which  was  strictly  specific ;  and  if  the  testator's  language  be  to  have 
any  effect,  then  it  appears  from  his  own  expressions  that  his  inten- 
tion was  to  give  the  bill  specifically,  an  intention  which  being  so 
plainly  declared  ought  not  (as  it  is  presumed)  to  have  been  con- 
trolled by  mere  inference  drawn  from  the  settlement  of  the  property. 
Under  these  circumstances  it  is  conceived  that  Coleman  v.  Coleman 
ought  to  be  considered  at  the  utmost  but  of  very  doubtful  autho- 
rity.^) 

In  the  next  case,  the  objection  raised  to  the  legacy's  being  spe- 
cific was  its  being  a  bequest  of  the  money  to  be  received  on  the 
security;  to  which  Sir  William  Grant  answered,  that  "such  was  the 
case  of  every  bequest  of  a  debt."  It  is  not,  therefore,  necessary  to 
render  the  legacy  of  a  debt  specific  that  the  security  itself  should 
be  given,  but  it  is  sufficient  if  it  clearly  appear  that  the  money  due 
upon  such  security  was  intended  to  be  the  sole  subject  of  the  gift. 

Thus  in  Fryer  v.  Morrises)  the  form  of  the  bequest  was  as  follows: 
"  I  bequeath  to  B.  all  such  sum  and  sums  of  money  as  my  executors 
may,  after  my  death,  receive  on  the  interest  note  of  4001.  given  to  me 
by  Messrs.  Cross  fy  Co.,  bankrupts,  Bath,  either  as  a  dividend  under 
their  commission  in  part  thereof,  or  which  they,  my  executors,  may 
receive  from  the  representatives  of  the  late  J.  C.  or  otherwise  in  re- 
spect of  such  note,  in  trust  for  all  the  children  of  D.  who  shall  attain 
the  age  of  twenty-one,  equally."  Sir  William  Grant  determined 
that  this  amounted  to  a  specific  legacy  of  the  money  due  upon  the 
note. 

When  the  question  is,  whether  a  testator  intended  specifically  to 
dispose  of  part  of  a  debt  owing  to  him,  the  same  observations  apply, 
as  when  the  point  for  decision  is,  whether  he  intended  specifically 
to  bequeath  the  whole  of  a  debt  due  to  him.  He  must  either  ex- 
press that  the  legacy  is  part  of  the  debt,  or  he  must  use  language 
sufficiently  clear  to  show,  that  the  subject  bequeathed  was  meant  to 
be  parcel  of  the  identical  sum  due  to  him.  With  respect  to  the  first 
of  these  remarks, — 

A.  bequeathed  in  the  following  manner:  "  to  my  grand-daughter  B. 
the  sum  of  40l.  being  part  of  a  debt  due  and  owing  to  me  for  rent 
from  C.,  she  allowing  what  charges  shall  be  expended  in  getting  the 
same.  Item,  I  bequeath  to  my  grandsons,  _D.  and  E.  the  rest  and 
residue  of  what  is  due  and  owing  to  me  frorn  the  said  C.,  which  is 
about  401.  more,  in  equal  shares,  and  they  allowing  charges  as  afore- 
said." These  were  held  to  be  specific  bequests  of  the  debt  due 
from  C.(f) 

And  in  relation  to  the  second  remark,  the  case  of  Ellis  v. 
Walker,(u)  proves,  that  unless  the  testator  had  clearly  shown  that 
he  intended  to  bequeath  the  identical  sum  due  to  him  upon  the  last 
settlement  of  partnership  accounts  by  the  explanatory  words  "  if  I 
do  not  draw  it  out  of  trade,"  the  form  of  bequest  to  B.  of  20001. 

Jl  And  see  Bromdon  v.  Winter,  Ambl.  57.  («)  9  Ves,  360. 

Ford  v.  Fleming,  1  Eq.  Ca.  Abr.  302,  pi.  3.  not  so  correctly  reported  in  2  P. 
.  469.  and  see  Rider  v.  Wager,  2  P.  WU1.  329. 

(u)  Arnbl.  309.  and  stated  supra,  p.  155.  As  to  what  expression,  short  of  plain 
declaration  will  be  sufficient  to  make  the  legacy  specific,  see  2  Ves.  sen.  561.  564. 
Forrest.  152.  2  Bro.  C.  C.  18.  3  Bro.  C.  C.  431. 


SECT.  VII.]  Specific  Legacies.  177 

"  which  appeared  to  be  due  to  the  testator  on  the  last  settlement  in 
trust,  &c."  would  not  have  been  a  sufficiently  clear  manifestation 
of  an  intent  to  make  the  legacy  depend  upon  the  existence  of  such 
a  fund,  as  well  from  the  nature  of  the  fund,  as  the  manner  in  which 
the  legacy  was  given,  viz.  of  a  sum  of  money ;  for  the  clause  that 
immediately  followed  the  gift  was  merely  descriptive  of  the  pro- 
perty out  of  which  the  legacy  was  to  be  paid,  (i.  e.)  what,  if  any 
thing  might  be  due  to  the  testator  in  respect  to  his  share  of  the 
partnership  stock,  a  fund  quite  contingent,  as  depending  upon  the 
result  of  the  partnership  accounts,  and  not  a  substantive  indepen- 
dent bequest  of  such  share  itself.  Such  was  the  reasoning  of  Lord 
Hardwicke,  and  who  expressed  his  opinion,  that  the  legacy  of  2000Z. 
would  have  been  general,  except  from  the  marked  words,  "  if  I  do 
not  draw  it  out  in  trade." 

But  the  case  of  Philips  v.  Carey(x)  must  be  noticed,  which  de- 
cided that  a  bequest  was  specific,  upon  intention  inferred  from  words 
not  affording  that  plain  unequivocal  evidence  of  intent,  which,  as 
we  have  seen,(y)  is  required  to  render  a  legacy  specific  which  in 
form  is  general. 

In  that  case  the  testator  gave  a  legacy  of  1000Z.  to  B.,  payable  at 
the  age  of  twenty-one,  or  marriage,  to  be  retained  in  the  hands  of  A. 
(who  had  money  of  the  testator  in  his  hands  as  his  banker.)  And  it 
was  held  by  the  Master  of  the  Rolls,  that  this  legacy,  if  pecuniary, 
would  only  carry  interest  from  the  time  of  payment;  but  that  by  the 
manner  of  bequeathing  it,  the  WOOL  was  severed  from  the  re_st  of  the 
estate,  and  especially  appropriated  for  the  benefit  of  the  legatee,  so 
that  it,  being  specific,  should  immediately  carry  interest. 

The  reader  should  be  apprised  that  the  last  case  was  said  by  Lord 
Thurlow,  in  Jlshburner  v.  MlGuire,(z)  to  be  nonsense,  and  to  have 
been  frequently  denied  ;  it  was,  however,  referred  to  with  approba- 
tion, by  Lord  Hardwicke  in  Heath  v.  Perry, (a}  who  thus  notices  it: 
"  It  was  a  sum  of  1000/.,  and  part'  of  it  out  of  a  specific  debt  due  to 
the  testator;  therefore,  this  was  a  specific  legacy  ;  and  whether  the 
whole  or  part  of  a  debt  due  to  the  estate  be  given  as  a  legacy,  it  is 
equally  specific,  and  therefore  a  distinct  tree  and  distinct  fruit." 
When  two  such  great  Judges,  so  diametrically  differ,  reference  must 
be  had  to  principle  and  authority,  to  discover  which  of  the  two  is 
right.  It  is  settled,  as  before  observed,(6)  that  strong,  solid,  and 
rational  interpretation  put  upon,  and  plain  inference  drawn  from,  the 
will  are  necessary  to  repel  the  prima  facie  construction  of  a  bequest 
being  general  when  given  in  that  form.  Lord  Eldon  has  decided, 
that  inference  arising  upon  equivocal  expressions  is  insufficient  for 
that  purpose. (c)  Then,  to  apply  this  test  to  the  present  case — the 
balance  in  the  hands  of  the  testator's  hanker  was  fluctuating;  it  was 
not  likely,  therefore,  that  he  intended  to  make  the  legacy  depend 
upon  that  contingency. (d)  In  addition  to  this  consideration,  he  be- 
queathed to  B.  a  sum  of  10001.  in  its  form  general,  with  a  direction 

(JT)  Stated  in  the  argument  of  the  case  of  Lawson  v.  Stitch,  1  Atk.  507. 

(y)  Ante,  p.  168.  (2)  2  Bro,  C.  C.  113. 

(a)  3  Atk.  103.  (b)  Ante,  p.  168. 

(c)  Sibley  v.  Perry,  7  Ves.  529.  and  see  his  Lordship's  observations,  9  Ves.  152. 

(</)  Ambl.  309. 


VOL.  I. 


178  Specific  Legacies.  [Cn.  III. 

to  A.,  his  banker,  to  retain  the  sum  in  his  hands.  By  that  direction, 
he  might  mean  no  more  than  that  A.  should  preserve  a  sufficient  fund 
in  his  possession,  to  answer  the  legacy  when  B,  should  marry,  or  at- 
tain the  age  of  twenty-one,  referring  to  the  money  in  ASs  hands  as 
the  primary  fund  out  of  which  the  legacy  should  be  paid,  and  not  as 
an  original  specific  disposition  of  any  part  of  it ;  or  he  might  mean 
(though  less  probably)  to  give  of  his  specific  money  in  A's  hands  to 
the  amount  of  WOOL,  with  orders  to  retain  that  sum  till  it  became 
payable.  The  intention,  then,  being  equivocal,  and  the  interpreta- 
tion or  inference  not  coming  up  to  the  rule  before  stated,  it  is  pre- 
sumed that  the  sentence  passed  upon  this  case  by  Lord  Thurlow,  is 
just,  and  that  if  a  similar  one  were  to  occur,  the  decision  in  Philips 
v.  Carey  would  not  be  followed. 

2.  Having  produced  various  instances  of  forms  of  bequests  which 
have  been  adjudged  to  be  specific,  we  shall  next  proceed  to  the  con- 
sideration of  those  forms  of  dispositions  which  have  been  held  insuf- 
ficient to  create  specific  bequests  of  the  debts  or  securities  to  which 
they  alluded.  Questions  upon  this  subject,  as  on  those  which  have 
been  previously  discussed,  depend  upon  the  testator's  intention  ;  that 
being  the  test  by  which  they  are  to  be  tried  and  determined.  A 
court  of  equity  leans  to  the  consideration,  that  all  bequests  are  ge- 
neral :  it  therefore  requires  expressions  actually  bequeathing  the 
identical  debt,  (examples  of  which  have  been  given,)  or  such  a  re- 
ference to  it  appearing  upon  a  strong,  solid,  and  rational  interpreta- 
tion of  the  will,  as  to  raise  a  plain  inference  that  the  debt  was  the 
exclusive  subject  intended  to  be  given  by  the  testator  to  the  legatee  ; 
for  the  bequest  of  a  sum  of  money,  with  ever  so  plain  a  reference  to 
the  amount  of  a  debt  or  fund  out  of  which  it  is  given,  is  very  differ- 
ent from  a  gift  of  the  fund  itself,  with  all  the  chances  of  fluctuation 
in  its  amount  ;(e)  so  that  when  a  legacy  of  a  debt  is  in  its  form  gene- 
ral, and  it  is  endeavoured,  from  the  context  of  the  will,  to  construe 
such  bequest  specific,  it  can  only' be  accomplished  by  such  strong, 
solid,  and  rational  interpretation  to  be  put  upon,  and  plain  inference 
to  be  drawn  from  the  will,  as  have  been  before  mentioned. (/)  Mere 
private  opinion  or  conjecture  will  be  insufficient  for  the  purpose.  In 
considering  the  cases  in  confirmation  of  the  above  remarks,  we  shall 
commence  with  an  instance  where  the  security  belonging  to  the  tes- 
tator was  neither  given  nor  referred  to,  but  the  bequest  was  merely 
of  securities  of  a  similar  description : 

In  Sleech  v.  Thorington,(g)  A.  bequeathed  as  follows  :  "  I  give  and 
bequeath  unto  B.  400J.  East  India  bonds,  on  trust  to  pay  the  inter- 
est thereof  from  time  to  time  to  my  niece  C.  until  her  age  of  twen- 
ty-one, or  marriage  ;  and  afterwards  to  pay  the  said  4001.  East  India 
bonds  to  her."  Sir  Thomas  Clarke,  M.  R.  decided,  that  this  form 
of  bequest  was  not  specific,  but  of  quantity,  and  to  be  made-  good 
out  of  the  personal  estate  of  A. 

The  instance  just  given  has  none  of  the  essentials  of  a  specific  le- 
gacy. There  is  no  reference  to  any  East  India  bonds  in  A:S  pos- 
session, nor  are  there  any  expressions  or  inference  from  the  will,  that 
A,  intended  to  bequeath  any  such  securities  specifically.  The  le- 

(e)  3  Ves.  &  Bea.  5.    AmbL  309.  (/)  Ante,  p.  168. 

(£•)  2  Ves.  sen.  560.  563. 


SECT.  VII.]  Specific  Legacies.  179 

gacy  is  of  East  India  bonds  generally ;  a  bequest  which  the  execu- 
tor can  literally  satisfy  by  the  purchase  of  any  bonds  of  that  descrip- 
tion. This,  then,  seems  to  be  the  first  step  towards  rendering  a 
legacy  specific. 

The  next  advance  towards  the  specific  legacy  of  a  debt  or  secu- 
rity, is  where  the  form  of  bequest  being  general,  allusion  is  made  to 
the  debt  or  security ;  but  in  such  a  manner  as  to  render  it  equivocal 
whether  the  debt  or  security  was  or  was  not  intended  to  be  specifi- 
.cally  bequeathed.  Under  such  circumstances,  the  prima  facie  con- 
struction of  the  bequest  being  general,  cannot,  as  before  observed, (h) 
be  repelled  by  inference  arising  from  such  a  reference  or  allusion  to 
the  particular  fund.  This  may  happen,  first,  when  a  sum  of  money 
is  distinctly  bequeathed,  and  a  debt  or  security  is  previously  or  sub- 
sequently mentioned,  but  without  any  declaration  or  plain  inference 
appearing  that  such  fund  was  itself  the  identical  fund  solely  intend- 
ed for  the  legatee.  Or,  secondly,  this  may  happen  when  the  legacy 
is  given  in  the  form  of  a  general,  but  out  of  or  directed  to  be  paid 
out  of  a  particular  debt  or  security.  In  these  instances  the  legacies 
are  general,  because  the  bequests  being  distinctly  made  in  that  form, 
viz.  of  a  sum  of  money,  the  prior  or  subsequent  description  of  a 
particular  fund,  or  the  gift  of  the  sum  out  of  it,  raises  no  higher  in- 
ference than  this :  that  the  testator  might  intend  to  bequeath  the 
debt  or  security  specifically,  or  he  might  only  mean  to  point  to  that 
fund  as  the  primary  one  out  of  which  the  legacy  should  be  paid ;  so 
that  there  is  wanting  that  plain  and  certain  inference  of  intention 
arising  from  a  strong,  solid,  and  rational  interpretation  of  the  will, 
which  is  necessary  to  repel  the  primd  facie  construction  that  the  le- 
gacy is  general. 

Of  the  first  proposition,  the  opinion  of  Lord  Hardwicke,  in  Ellis 
v.  JValker,(i)  is  confirmatory. 

So  also  in  Gillaume  v.  Adderley,(k)  A.  bequeathed  to  Elizabeth, 
his  natural  daughter,  then  in  England,  for  her  education,  the  sum 
of  5000Z.  sterling,  or  50,000  current  rupees,  to  be '  paid  at  twenty- 
one,  or  upon  her  marriage,  if  with  the  consent  of  such  of  his  trustees 
as  might  be  then  in  England ;  but  in  case  his  daughter  were  in  Ja- 
maica when  she  married,  he  directed  the  said  sum  of  5000Z.  sterling 
to  be  paid  to  her  at  twenty-one,  if  then  in  Jamaica,  or  on  her  mar- 
riage there.  And  he  further  directed,  that  the  said  sum  of  50001. 
sterling,  or  50,000  current  rupees,  which  he  expressed  to  be  "  now 
vested  in  the  Company's  bonds,"  should  be  remitted  to  England  as 
opportunity  offered  ;  and  that  the  said  sum  of  50001.  sterling  should 
be  vested  in  the  bank,  or  upon  government  security,  in  trust  for  his 
said  daughter,  and  the  interest  applied  for  her  support  and  education 
during  minority,  until  she  should  be  entitled  to  the  said  sum  of  5000Z. 
sterling,  or  50,000  current  rupees,  in  manner  aforesaid ;  but  that  if 
she  died  before  twenty-one,  without  having  married  in  Jamaica,  or 
if  she  married  in  Europe  without  consent  of  the  trustees  as  aforesaid, 
he  bequeathed  the  aforesaid  sum  of  50001.  sterling,  or  50,000  cur- 
rent rupees,  and  accumulated  interest,  equally  between  his  brother 

(A)  Ante,  p.  169.  (i)  Ambl.  309.  stated  suftra,  p.  155. 

(k)  15  Ves.  385,  389.  and  see  the  case  of  the  Earl  of  Thomond  v.  The  Earl  of 
Suffolk,  1  P.  Will.  462. 


180  Specific  Legacies.  [Cn.  III. 

and  sister  B.  and  C.  The  question  was,  whether  this  legacy  was 
specific  or  general  *?  And  Lord  Eldon  expressed  his  opinion,  that 
it  was  of  the  latter  kind ;  observing,  that  it  was  originally  a  legacy 
of  money,  5000Z.  or  50,000  current  rupees  considered  as  of  the  same 
value,  and,  that  the  bequest  was  no  more  than  of  a  sum  of  money, 
pointing  out  a  particular  mode  of  payment  by  a  fund  provided  in 
the  first  instance. 

Yet,  as  the  reader  will  observe,  there  is  no  gift  of  the  last  legacy 
out  of  any  particular  India  bonds  of  the  testator  at  the  date  of  his. 
will,  nor  a  direction  for  its  payment  out  of  any  such  securities.  The 
principle  of  the  decision  appears  to  be,  that  the  legacy  being  origi- 
nally given  as  general,  the  mere  subsequent  notice  that  the  sum  was 
then  vested  in  India  bonds  was  insufficient,  for  the  reasons  before 
mentioned,  to  change  the  nature  of  the  bequest,  and  make  it  speci- 
fic ;  and  that  although  it  was  not  expressed  that  the  legacy  should 
be  paid  out  of  the  bonds  in  the  possession  of  the  testator,  yet  his 
mentioning  them  was  sufficient  evidence  of  his  intention  to  make 
them  the  primary  fund  for  paying  such  legacy. (I) 

To  the  last  determination  may  be  added  the  Case  of  Le  Grice  v. 
Finch  ;(m)  in  which  A.  reciting,  "  that  it  was  the  wish  and  desire  of 
her  mother  and  herself  that  the,  5001.  they  had  then  out  upon  mort- 
gage, should  be  given  to  B.  and  her  family  in  manner  thereinafter 
mentioned,"  gave  to  her  executors,  immediately  after  her  mother's 
death,  the  said  5001.  with  all  interest  due  thereon,  upon  trust  for  B. 
&c.  as  therein  mentioned.  This  money  having  been  called  in  by  the 
testatrix,  the  question  was,  whether  the  bequest  of  it  was  not  speci- 
fic, and  consequently  adeemed-1?  And  Sir  William  Grant  held  the 
bequest  to  be  general ;  it  being  made  of  a  sum  of  money,  and  the 
security  being  only  mentioned  as  descriptive  of  the  then  situation  of 
the  money  :  money,  not  the  security,  being  the  subject  of  gift.  The 
principle  is  the  same  as  that  of  the  decree  in  Gillaume  v.  Adderky. 
His  Honour  thus  expressed  himself :  "  The  essential  characteristic 
of  the  legacy  is,  that  it  consists  of  a  sum  in  which  the  testatrix  ad- 
mits that  her  mother  and  herself  had  some  sort  of  joint  interest,  and 
which  they  were  both  desirous  of  giving  to  B.  This  characteristic 
was  not  at  all  dependant  on  the  particular  security  on  which  the 
money  might  be  placed.  The  testatrix  considers  the  circumstance 
of  its  being  at  that  time  out  on  mortgage  as  merely  accidental.  She 
speaks  of  the  500Z.  we  have  now  out  upon  mortgage.  That  is  des- 
criptive of  the  present  situation  of  the  money.  The  next  day  it 
might  not  be  out  upon  mortgage,  but  it  would  s'till  be  the  5001.  in 
which  the  mother  and  the  daughter  had  a  joint  interest,  and  which 
at  the  time  of  the  will  they  had  out  upon  mortgage.  The  thing 
given  is  not  the  mortgage,  but  the  money.  It  is  the  said  sum  of 
5001.  that  she  gives  to  her  executors.  What  is  the  said  sum°l  That 
sum  of  500Z.  which  belonged  to  her  mother,  and  which  at  a  given 
time  was  out  upon  mortgage.  Whether  it  remained  out  upon  mort- 
gage at  the  time  of  the  testator's  death,  appears  to  me  a  matter  of 
indifference.  That  circumstance  is  no  ingredient  in  the  gift,  either 
by  way  of  condition  or  of  inherent  description.  I  am  therefore  of 
opinion,  that  the  legacy  is  due." 

(/)  See  ante,  sect.  5.  p.  169.  and  1  Meriv.  178.  (m)  3  Meriv.  50. 


SECT.  VII.]  Specific  Legacies.  181 

It  is  observable,  that  the  two  last  cases  differ  from  Jlshburner  v. 
M'Guire,  and  the  other  authorities  of  that  class,  and  before  stated, 
in  which  the  forms  of  bequest  were  not  general,  with  a  subsequent 
allusion  to,  or  specification  of  securities,  but  primary  gifts  of  the  se- 
curities themselves. (n) 

As  to  the  second  proposition,  that  although  a  legacy  be  bequeath- 
ed out  of  a  debt,  it  will  not,  generally  speaking,  be  a  regular  speci- 
fic bequest  of  the  debt  itself  whether  the  bequest  be  of  a  sum  of 
money,  and  therefore,  in  terms  general,  or  whether  it  appear  to  have 
been  given  as  a  general  legacy,  upon  clear  inference  arising  from 
the  whole  will ;  which  was  the  principle  of  the  cases  of  Savile  v. 
Blacket,(o)  and  Mann  v.  Copland,(p)  before  stated. (q)  Such  lega- 
cies are  in  one  sense  only  specific,  that,  against  all  other  general  le- 
gatees they  have  a  precedency  of  payment  out  of  the  debt  or  secu- 
rity, (r)  but  in  another  sense  the  legacies  are  general,  since  if  the 
debt  be  not  in  existence  at  the  testator's  death,  or  if  it  be  insuffi- 
cient to  pay  the  legacies,  the  legatees  will  be  entitled  to  satisfac- 
tion out  of  the  general  estate  of  the  testator.  A  few  cases  will  illus- 
trate these  observations  : 

In  Roberts  v.  Pocock,(s)  A.  bequeathed  to  his  nieces  B.  and  C. 
the  sum  of  40001.  with  benefit  of  survivorship,  if  either  died  under 
twenty-one,  and  if  both  died  under  that  age,  he  directed  the  whole 
of  the  said  4000L  to  fall  into  his  residuary  estate.  He  then  gave  to 

D.  the  sum  of  500Z.  at  twenty-one,  with  the  like  direction  as  to  its  fall- 
ing into  the  residue,  if  she  died  under  age.     He  also  bequeathed  to 

E.  the  sum  of  500Z.  for  the  trouble  he  heretofore  had  in  the  manage- 
ment of  his,  (the  testator's)  affairs,  and  would  have  in  the  execution 
of  the  trusts  of  his  will.     The  will  then  proceeded  in  this  manner, 
— "  And  I  direct  that  all  the  aforesaid  legacies  shall  be  paid,  by  and 
out  of  the  monies  which  are  now  due  and  owing  from  A.  Davidson 
of  Madras,  Esquire,  upon  bond  ;  but  my  will  is,  that  in  case  I  shall 
receive  the  said  monies,  or  alter  the  said  securities,  such  receipt  or 
alteration  shall  not  be  deemed  or  construed  a  revocation  of  any  or 
either  of  the  said  legacies,  but  the  same  shall  in  such  case  be  paid 
by  and  out  of  some  other  part  of  my  estate  and  effects  ;  and  that  all 
such  legacies  shall  bear  interest  after  the  rate  of  five  per  cent  per 
annum,  from  the  time  of  my  decease ;  and  that  the  interest  of  the 
several  legacies  intended  for  the  said  B.  and  D.  and  E.  shall  be 
paid  to  them  respectively,  or  be  applied  by  my  executors  hereinafter 
named,  for  or  towards  the  maintenance  and  education  of  them  the 
said  legatees ;  according  to  their  several  provisions  so  intended  for 
them  respectively,  until  the  said  principal  legacies  shall  be  paid 
and  payable.     And  as  to  all  the  rest,  residue  and  remainder  of  my 
estate  and  effects,  of  what  nature  or  kind  soever,  and  whether  in 
settlement  or  not,  I  give,  devise,  and  bequeath  the  same  unto  my 
dear  and   loving  wife  jP.  for  her  own  use  and  benefit  absolutely." 
And  he  appointed  his  wife  and  the  said  E.,  executor  and  executrix 
of  his  will.     The  bond  was  dated  the  5th  of  May  1783,  to  secure 

(n\  See  ante,  p.  173.     (o)  1  P.  Will.  778.  stated  sufira,  p.  154.     (ft)  2  Mad.  223. 
(g)  Ante,  p.  153.  and  -vide  sufira,  p.  166.  eC  seg,  as  to  legacies  given  out  of  stock, 
(r)  1  Menv.  178. 
(»)  4  Ves.  150.  and  see  Earl  of  Thomond  v.  Earl  of  Suffolk,  1  P.  Will.  461. 


Specific  Legacies.  [€H.  III. 

50001.  and  an  arrear  of  interest.  The  amount  of  this  debt  being 
diminished  by  receipts  of  the  testator  in  his  lifetime,  the  sum  owing 
upon  this  security  at  his  death  was,  3,5S3Z.  9s.  6d.  The  obligor 
proving  insolvent,  a  question  arose  whether  the  above  legacies, 
amounting  to  5000/.  given  with  a  view  to  the  money  due  upon  the 
bond,  should  be  made  good  out  of  the  general  residue  of  the  testa- 
tor's estate,  which  depended  upon  another  question,  whether  they 
were  to  be  considered  specific  or  general  legacies.  And  Lord  Ross- 
lyn,  determined  that  the  legacies  were  general,  and  said  that  the 
legacies  were  not  given  specifically,  and  that  he  could  not  apply  any 
rule  to  them,  which  had  been  laid  down  as  specific  legacies ;  that 
the  testator  had  not  given  the  bond  in  form  nor  in  substance,  and 
that  the  legacies  were  charged  upon  the  bond,  but  did  not  amount 
to  a  gift  of  it ;  that  if  the  bond  had  been  a  good  security,  it  was 
worth  much  more  than  the  amount  of  the  legacies  with  legal  inter- 
est, from  the  death  of  the  testator,  and  that,  therefore,  the  benefit  of 
the  bond  belonged  to  the  residuary  legatee,  as  a  substantive  part 
of  the  testator's  estate,  charged  with  the  legacies, (t]  that  the  Court 
would  have  laid  hold  of  the  bond,  and  not  have  permitted  it  to  be 
applied  to  the  prejudice  of  the  legatees,  except  for  the  payment  of 
debts ;  and  that  the  legacies  might  be  said  to  be  specific,  in  the  res- 
pect that  they  were  not  to  abate.  His  Lordship  concluded  in  obser- 
ving, that  there  was  no  principle  upon  which  he  could  say,  that  the 
legacies  were  not  to  be  paid  out  of  the  residue,  except  by  indulging 
in  a  strain  of  conjecture,  which  was  too  slight  and  too  dangerous  for 
the  Court  to  act  upon. 

With  the  last  case  agrees  the  decision  of  Sir  William  "Grant  in 
Smith  v.  Fitzgerald.(u) 

In  that  case  A.  after  reciting  in  his  will  that  the  Nabob  of  Arcot 
was  indebted  to  him  in  upwards  of  10,OOOZ.  arrears  of  his  annuity  ; 
and  after  directing,  that  bills,  remitted  on  that  account,  should  be 
lodged  with  his  bankers,  and  the  balance,  after  adjusting  their  ac- 
count, paid  to  his  attornies,  made  the  following  dispositions  :  should 
the  whole  of  this  sum  be  received  at  stated  periods,  I  give  and  be- 
queath out  of  it  1000Z.  to  B.,  WOOL  to  C.,  20001.  to  D.,  lOOOZ.,  to 
.E.,  my  godson,  10001.  to  F.,  my  godson,  lOQOl.  to  G<,  my  godson, 
to  the  daughter  of  H.,  by  name  Sarah,  20001.  of  lawful  money  of 
Great  Britain.  I  bequeath  WOOL  of  this  debt  to  the  use  of  the 
poor  of  the  town  of  Woolwich  in  Kent,  (as  therein  directed.)  From 
this  debt  of  his  Highness,  I  give  500Z.  to  the  charity  school  of  Ma- 
dras, for,  &c.;  and  500Z.  to  the  different  hospitals  at  Bath,  to  the 
relief,  &c.  I  have  here  bequeathed  11,OOOZ.  to  several  purposes. 
The  testator  then  said,  "  that  should  this  just  debt  from  the  Nabob 
be  paid,"  there  would  be  coming  to  him  12,OOOZ.;  1000Z.  of  which 
he  left  for  casualties ;  and  he  directed,  that  after  payment  of  lega- 
cies (except  those  mentioned  from  the  Nabob's  debt,  as  they  might 
require  time,)  the  balance  (exclusive  of  the  Nabob's)  should  be  di- 
vided among  his  trustees  or  survivors.  It  was  one  of  the  questions 
whether  the  legacies  given  out  of  the  debt  of  the  Nabob,  were  to  be 
considered  specific,  or,  in  other  words,  whether  that  debt,  whatever 

0  See  Lambert  v.  Lambert,  11  Ves.  607.  stated  ante,  p.  171. 
3  Ves.  &  Bea,  2.  5. 


SECT.  VII.]  Specific  Legacies.  183 

its  amount  might  be,  was  not  intended  to  be  divided  among  the  lega- 
tees "?  And  his  Honour  decided  upon  the  principle  before  frequent- 
ly mentioned,  viz.  the  distinction  between  a  gift  of  the  fund  itself, 
and  a  sum  of  money  out  of  it,  that  the  legacies  were  general  and  not 
of  aliquot  parts  of  the  specific  debt  owing  by  the  Nabob.  He  ob- 
served, that  the  testator  had  not  directed  the  debt  to  be  divided 
among  the  legatees  in  a  given  proportion,  but  on  the  contrary,  gave 
to  each  a  precise  sum  to  be  paid  out  of  that  debt,  whenever  it  should 
be  recovered  ;  that  it  was  clear  the  testator  conceived  that  the  lega- 
cies would  exhaust,  or  nearly  exhaust  the  whole  debt,  according  to 
his  computation  of  its  amount,  but  that  still  a  gift  of  a  sum  of  money, 
though  with  ever  so  plain  a  reference  to  the  amount  of  the  fund,  is 
very  different  from  a  gift  of  the  fund  itself,  with  all  the  chances  of 
its  actual  amount. 

In  the  following  case  the  same  Judge  adhered  to  this  distinction, 
and  decided  according  to  what  has  been  stated,  that  when  a  legacy 
is  given  out  of  a  fund,  no  other  legatee  can  subject  it  to  his  demand 
until  the  first  legacy  has  been  satisfied.  The  authority  alluded  to 
is  Acton  v.  Acton.(x) 

In  that  case  A.  by  a  codicil  bequeathed  to  his  daughter  B.  a  por- 
tion of  12,OOOZ.  and  to  his  niece  C.  40001.  directing  that  the  latter 
sum  should  be  paid  out  of  the  money  in  the  hands  of  his  bankers  or 
agents  in  England.  There  was  a  sum  exceeding  4000J5.  in  the  hands 
of  A's  agent  when  A.  died,  but  his  other  personal  estate  was  not 
sufficient  to  pay  those  two  legacies  and  all  the  others  given  by  the 
will.  If  the  legacy  of  40001.  were  specific,  there  could  be  no  ques- 
tion upon  the  right  of  the  legatee  to  be  fully  paid  out  of  the  fund, 
and  the  question  was,  whether,  as  this  legacy  was  in  form  general, 
but  given  out  of  a  particular  part  of  the  personal  estate,  that  circum- 
stance constituted  such  a  lien  upon  it  as  to  entitle  the  legatee  to  have 
that  fund  appropriated  in  payment  of  her  legacy,  before  any  part  of 
it  should  be  applied  in  satisfying  the  other  legacies ;  and  Sir  Wil- 
liam Grant  determined  that  she  had  such  right. 

Although  the  general  rule  of  construction  be  such  as  before  men- 
tioned when  legacies  are  given  out  of  a  debt  or  security;  yet  it  is 
not  so  absolute  as  to  admit  of  no  exceptions,  as  we  have  seen  in  the 
fifth  section  when  treating  of  bequests  out  of  stocks  or  annuities  in 
public  funds. (y]  If,  therefore,  it  appear  upon  plain  inference  drawn 
from  a  strong,  solid,  and  rational  interpretation  of  the  whole  will, 
that  the  testator  meant  to  give  the  indentical  debt  or  security,  then 
although  the  bequest  be  in  form  such  as  that  according  to  the  primd 
facie  rule  of  construction,  it  ought  to  be  considered  general,  i.  e.  of 
so  much  money,  and  the  debt  or  security  a  primary  fund  appropriat- 
ed for  its  payment,  still  the  intention  so  appearing  will  prevail  and 
constitute  the  bequest  specific,  viz.  of  the  debt  or  security  itself.  As 
an  instance  of  this  : 

In  Badrick  v.  Stevens,(z)  A.  bequeathed  in  the  following  manner : 
"  I  bequeath  to  B.  and  C*.  who  formerly  lived  servants  with  me,  the 
sum  of  30Z.  each,  to  be  severally  paid  to  them,  within  three  months 
next  after  my  death,  out  of  2001.  due  from  D.  to  me  upon  bond. 
Also,  I  give  to  E.  and  F.  the  sum  of  501.  each,  to  be  severally  paid 

(*•)  1  Meriv.  178.        (y)  Ante,  p.  168.        (z)  3  Bro.  C.  C.  431,  ed.  by  Belt. 


184  Specific  Legacies.  [Cn.  III. 

to  them,  within  three  months  next  after  my  death,  out  of  the  said 
sum  of  200/.  due  to  me  from  the  said  D.  Also,  I  bequeath  to  the 
said  D.  the  sum  of  401.  being  the  remainder  of  the  said  sum  of  2001. 
due  from  him  to  me  as  aforesaid."  And  after  giving  other  legacies, 
A.  bequeathed  the  residue  to  G.  and  H.  The  money  on  the  bond 
having  been  received  by  A.  it  became  necessary  to  consider  whether 
the  legacies  were  given  as  specific  parts  of  the  bond  debt,  or  as  mo- 
ney legacies  ;  that  debt  being  pointed  out  as  the  primary  fund  for 
their  payment.  And  Lord  Thurlow  determined  that  the  legacies 
were  specific,  and  consequently  adeemed. 

The  similarity  of  the  last  case  to  that  of  Sleech  v.  Thorington(a)  be- 
fore stated, (b)  will  not  have  escaped  observation.  In  both  instances,  the 
intention  to  bequeath  specifically,  plainly  appeared  from  the  disposi- 
tion of  the  funds  in  fractional  parts,  and  describing  the  gifts  of  the 
last  portions  as  the  remainder  of  the  whole.  That  word  clearly  im- 
ported a  reference  to  something  that  the  testator  had,  and  which  he 
was  disposing  of  specifically  ;  the  subject  in  the  present  case  being 
the  debt  upon  bond,  and  in  the  other  South  Sea  stock.  It  is  safer 
to  ascribe  Lord  Thurlow's  decision  to  the  principle  and  authority  of 
Sleech  v.  Thorington,  than  to  the  mere  circumstance  of  the  lagacies 
being  equal  in  amount  to  the  debt.  For  when  there  are  no  expres- 
sions, in  reference  to  the  fund,  plainly  manifesting  that  it  alone  was 
the  subject  of  bequest,  there  appears  to  be  no  more  reason  for  hold- 
ing the  legacies  specific,  because  they  happen,  as  a  total,  to  equal 
in  amount  the  fund  referred  to  for  their  payment,  than  when  there 
is  only  one  legacy  equal  in  value  with  the  debt  or  fund  ;  a  circum- 
stance which  we  have  seen  to  be  insufficient  to  render  the  legacy 
specific. (c) 

SECT.  VIII.   Bequests  of  general  personal  Estate. 

In  the  preceding  pages  have  been  considered  what  are  and  what 
are  not  specific  legacies  of  chattels,  sums  of  money,  stocks,  debts, 
&c.  The  next  subject  presenting  itself  is,  when  a  bequest  of  gene- 
ral personal  estate  will  and  will  not  be  specific.  And, 

1.  When  the  bequest  will  be  specific. 

It  was  noticed  in  the  beginning  of  the  fourth  sectioned)  that  to 
make  a  money  legacy  specific,  the  money  must  be  so  described  by 
the  testator,  as  to  empower  the  legatee  to  say  to  the  executor,  de- 
liver the  sum  bequeathed  to  me,  which  is  in  a  particular  chest,  bag, 
or  purse.  In  such  a  case,  the  thing  given  is  distinguished  and  sepa- 
rated from  the  general  estate,  and  specifically  bequeathed,  and 
capable  of  being  delivered  in  specie. 

The  same  tests  must  be  applied  in  ascertaining  whether  legacies 
of  general  personal  estate  are  or  are  not  specific  ;  for  such  bequests 
may  be  specific  ;  yet  the  bequest  of  all  a  person's  personal  estate 
generally  is  not  specific  :  the  very  terms  of  such  a  disposition  de- 
monstrate its  generality.  But  if  A.  bequeath  to  B.  all  his  personal 
estate  at  C.,  or  in  a  particular  house  or  country,  the  legacy  will 
be  specific  ;  for  it  is  confined  in  its  extent,  and  falls  within  the 
description  before  given  of  such  a  legacy  :  B.  can  say  to  the  exe- 
cutor, deliver  to  me  all  ASs  personal  estate  at  C.,  or  in  the  particu- 
lar house  or  country,  for  I  am  entitled  to  receive  it  in  specie. 

(c)  2  Ves.  sen.  561.      (d)  Ante,  p.  164.      (c)  Ante,  p.  158.      (d)  Sufira,  p.  17f. 


SECT.  VIII. ]  Specific  Legacies^  185 

Accordingly,  •&.  having  personal  property  at  B.  and  elsewhere, 
bequeathed  to  his  wife  C.  all  his  personal  estate  at  B.  There  were 
other  legacies,  and  a  deficiency  of  assets  to  pay  all  of  them.  The 
question  was,  whether  the  bequest  to  C.  was  specific  ;  in  which  case 
she  would  not  be  obliged  to  abate  with  the  other  legatees'?  And  the 
Court  decided,  that  the  legacy  was  specific. (e) 

So  ajso  in  Nisbett  v.  Murray, (f]  the  testator,  after  giving  two 
specific  legacies  out  of  his  property  in  the  island  of  Jamaica,  (hav- 
ing first  charged  all  his  property  generally  with  the  payment  of 
debts,)  bequeathed  the  rest  and  residue  of  his  real  and  personal 
estates  in  the  said  island  of  Jamaica,  to  trustees,  also  his  executors, 
to  sell,  and  invest  the  proceeds,  with  all  other  monies  belonging  to 
his  estate  on  security  in  England;  and  he  then  gave  a  variety  of 
legacies,  and  the  remainder  of  the  monies,  to  his  executors  benefi- 
cially. Lord  Jllvanley  determined,  that  this  was  a  specific  legacy  of 
all  the  testator's  property  in  Jamaica,  from  the  effect  of  the  con- 
trolling words  "  in  the  said  island  of  Jamaica ,"  to  trustees,  also  his 
executors,  to  sell,  and  invest  the  proceeds,  with  all  other  monies  be- 
longing to  his  estate  on  security  in  England  ;  and  he  then  gave  a 
variety  of  legacies,  and  the  remainder  of  the  monies  to  his  executors 
beneficially.  Lord  Mvanley  determined,  that  this  was  a  specific  lega- 
cy of  all  the  testator's  property  in  Jamaica,  from  the  effect  of  the 
controlling  words  "in  the  said  island  of  Jamaica ." 

The  cases  before  referred  to  are  authorities  for  the  following  be- 
quests being  specific  :  "  of  all  the  goods,  &c.  in  a  particular 
room"(g) ;  or  "  of  all  goods  and  chattels  in  a  described  coun- 
ty"^) ;  or  "  of  all  plate,  linen,  and  furniture  in  my  house  at  A.,  or 
which  shall  be  therein  at  the  time  of  my  decease. "(i)  The  princi- 
ple of  decision  is  that  which  has  been  stated,  viz.  the  severance  of 
this  particular  property  from  the  great  body  of  the  estate,  and  the 
specific  gift  of  it  to  the  legatee. 

2.  Since,  then,  a  bequest  of  personal  estate  requires,  as  before 
mentioned,  to  be  limited  or  controlled  to  some  particular  place,  or 
to  be  referred  to  as  in  some  person's  hands, (fc)  in  order  to  make  it 
specific,  it  follows,  that  if  there  be  no  such  restrictive  expressions, 
a  legacy  of  personal  estate  generally  will  be  general,  and  not  spe- 
cific; so  that  if  real  and  personal  estates  were  given  by  will  to  Jl. 
for  life,  remainder  to  B.,  neither  the  circumstance  of  the  bequest  of 
the  personal  property  being  in  the  same  sentence  as  the  real,  the 
devise  of  which  was  necessarily  specific,  nor  the  circumstance  of  the 
real  and  personal  estates  being  dealt  out  together  in  portions,  would 
be  sufficient  to  constitute  the  disposition  of  the  general  personal 
property  a  specific  legacy.  This  will  appear  from  the  following 
case: — 

In  Howe  v.  the  Earl  of  Dartmouth,(l)  Jl.  devised  to  his  wife  B.  all 
his  personal  estate  whatsoever  (with  an  exception)  for  life,  subject  to 
legacies,  &,c.  He  also  left  to  her  all  his  real  estates  for  life,  and 

(e}  Sayer  v.  Sayer,  2  Vern.  688.     Pre.  Ch.  392.  S.  C. 
(/)  5  Ves.  150.  156,  and  see  Sadler  v.  Turner,  8  Ves.  617.  623. 
(,§•)  Green  v.  Symonds,  1  Bro.  C.C.  129,  notes.     (A)  Moore  v.  Moore,  ibid.  127. 
(i)  Gayre  v.  Gayre,  2  Vern.  538.    Shaftesbury  v.  Shaftcsbury,  ibid.  747.  Land 
v.  Dcvaynes,  4  Bro.  C.  C.  537. 

(*)  Ante,  p.   155.  (/)  7  Ves.  137. 

VOL.  i.  A  a 


186  Specific  Legacies.  [Cn.  IV. 

afterwards  all  his  personal  and  real  estates  to  C.  for  life,  and  then 
to  the  first  and  other  sons  of  D.  in  succession,  subject  to  the  pay- 
ment of  certain  legacies  and  annuities.     A  considerable  part  of  the 
personal  estate  consisted  of  bank  stock  and  long  and  short  .annuities. 
B.  died  before  .#.,  and  after  the  death  of  C.  who  survived  .#.,  a  ques- 
tion arose  between  C.'s  personal  representative,  and  the  person  next 
entitled  in  succession,  whether  C.  as  tenant  for  life  of  such  funds  as 
bank  stock,  carrying  a  higher  rate  of  interest,  and  long  and  short 
annuities  wearing  out  rapidly,  had  not  received  a  larger  sum  of 
money  for  interest  and  dividends  than  she  would  have  been  entitled 
to  if  the  funds  had  been  sold  immediately  after  the  testator's  death, 
as  they  ought  to  have  been,  and  the  produce  invested  in  the  pur- 
chase of  three  per  cent  consols.  That  question  necessarily  depended 
upon  a  preliminary  one,  viz.  whether  the  bequest  of  the  personal 
estate  was  general  or  specific1?  If  the  former,  C  's  receipts  were  too 
large,  and  could  not  be  allowed  to  the  prejudice  of  those  persons 
intended  to  take  after  her.     If  the  latter,  C.  was  entitled  to  the 
enjoyment  of  the  funds  in  specie  from  the  death  of  the  testator,  and 
consequently  to  receive  their  full  annual  produce.    And  Lord  Eldon 
determined  that  the  legacy  was  a  general  one :  and  that  C.'s  estate 
should  answer  for  the  excess  of  her  receipts  as  tenant  for  life ;  ob- 
serving, that  the  legacy  could  only  be  specific   upon   one  of  two 
grounds,  viz.  either  upon  the  words  describing  the  personal  estate, 
or  upon  the  construction  of  those  words,  coupled  with  the  devise  of 
all  the  landed  estates  of  A. ;  for  every  devise  of  land,  however  ex- 
pressed, was  of  necessity  specific.     There  being  no  description  of 
the  personal  estate  so  as  to  render  the  bequest  of  it,  even  in  this  sense, 
specific ;  viz.  expressive  of  ASs  intention,  that  the  personal  estate  he 
left  at  his  death,  should  be  enjoyed  by  the  successive  legatees  in  its 
then  state,  his  Lordship  took  the  second  ground,  and  said,  that  the 
intention  to  bequeath  personal  estate  specifically,  had  never  been 
considered  manifest,  from  a  disposition  of  the  personal  estate  in  the 
same  clause  with  land,  which  must  be  taken  to  be  specifically  given : 
and  that  the  cases  did  not  go  the  length,  that  if  the  enjoyment  of 
personal  property  were  portioned  out  in  life  interests,  with  remain- 
ders over,  it  was  specific. 

Allusion  was  made  in  the  last  case,  to  legacies  of  general  personal 
estate  specific  in  this  sense,  that  the  legatee  should  take  it  discharg- 
ed from  debts  and  legacies.  But  this  species  of  bequest  does  not 
regularly  fall  under  present  consideration,  since  its  basis  is  an  in- 
ference, not  made  in  general  cases,  upon  the  bequest  of  all  the  tes- 
tator's personal  estate,  but  on  the  effect  of  that  circumstance,  con- 
nected with  what  arises  out  of  other  parts  of  the  will,  with  regard  to 
the  intention  to  fix,  upon  other  property,  charges  that  would,  in  the 
first  place,  fall  upon  the  personal  estate  bequeathed ;  so  Lord  Eldon 
expressed  himself  in  the  last  case.  The  treating,  therefore,  upon 
this  kind  of  specific  legacy,  will  be  postponed  till  we  arrive  at  the 
chapter*  in  which  it  is  proposed  to  consider  the  instances  in  which 
a  testator's  personal  estate,  instead  of  being  the  primary,  will  be 
only  the  secondary  fund  for  the  discharge  of  debts  and  legacies,  viz. 
a  fund  in  aid  of  the  real  estate. 

*  Chap.  XII. 


SECT.  I.]  Eights  of  Specific  Legatees,  187 

CHAPTER  IV. 

Rights  of  Specific  Legatees  under  the  Words  of  the  Will,  and 
against  the  EXECUTORS  ;  and  the  Rights  of  Specific  Lega- 
tees of  Goods  and  Chattels  in  remainder  against  Specific 
Legatees  for  life. 

THE  subjects  of  the  present  Chapter  will  be  discussed  under  the 
following  arrangement : 

SECT.  I.     What  personal  estate  will  pass  to  specific  legatees 

under  the  words  of  the  will. 
1 . —  Considering  when  tJie  words  refer  to  the  date  of  the 

will,  and  when  to  the  death  of  the  testator. 
2. — What  will  pass  by  the  words  goods,  household  goods, 
personal  estate,  property,  and  things  when  referred 
to  as  being  in  a  particular  place ;  and — 
3. — When  the  woi'ds  goods,  &.c.  will  be  restrained  to  such 
only  as  are  ejusdem  generis  with  those  specified  in 
the  will,  and  when  not. 

4. — Constructionofthewoi'ds household  furniture, house- 
hold stuff,  chattels,  live  and  dead  stock,  stock  up- 
on a  farm,  effects,  utensils,  money,  security  for 
money,  medals,  debts,  linen  and  clothes,  farm  and 
plate. 
SECT.  II.  What  will  pass  a  specific  bequest  of  personal  estate 

in  the  Colonies. 

SECT.  III.  Of  the  title  of  a  specific  legatee  to  an  excess  of  the 

fund  whether  of  capital  QV  profits  accrued  between 

the  date  of  the  will  and  the  death  of  the  testator. 

SECT.  IV.  Of  mistakes  in  regard  to  the  subject  specifically  be^ 

queathed. 
1 . — In  the  description  of  the  fund,  and  the  admissibility 

of  extrinsic  evidence. 

2. — Of  the  admission  of  such  evidence  to  show  a  testa- 
tofs  intention  by  explaining  the  sense  in  which  he 
used  the  words  of  the  bequest ; — and 
3. — The  consequences  of  mistakes  in  the  calculation  of 
the  specific  funds  when  they  are  wholly  given  to 
one  person,  and  when  to  several  persons  in  frac- 
tional parts. 

SECT.  V.    The  rights  of  specific  legatees  against  the  execu- 
tors. 

SECT.  VI.   The  rights  of  specific  legatees  of  goods  and  chattels 
in  remainder  against  the  preceding  tenants  for 

life. 

1. —  When  an  inventory  or  security  will  be  required; — 
and 

2. — The  rights  where  a  tenant  for  life  of  a  lease  surren- 
ders the  old  and  takes  a  new  one ; — and 

3. — Of  contribution  an  the  payment  of  fines. 


188  Rights  of  Specific  Legatees,  [Cn.  IV. 

SECT.  I.   What  personal  Estate  will  belong  to  the  specific 
Legatees  under  the  words  of  the  Will. 

1.  In  considering  this  subject,  there  are  two  periods  of  time  to  be 
noticed ;  the  one  the  date  of  the  will,  and  the  other  the  death  of  the 
testator ;  for  if  a  testator  show  an  intention  to  dispose  of  such  goods 
or  personal  estate  as  belonged  to  him  at  a  particular  place  when  he 
made  his  will,  as  by  the  terms  "  of  all  such  part  of  my  personal 
estate  as  is  now  in  my  house  at  ./#."  property  afterwards  brought 
into  that  house  will  not  pass  to  the  legatee. 

Accordingly,  in  Dormer  v.  Burnet,(a)  A.  bequeathed  to  B.  her 
house  in  C.,  and  by  a  codicil,  "  all  the  goods  she  brought  into  the 
house,  except  what  are  mentioned  in  a  schedule."  There  was  no 
schedule  found  ;  and  the  Court  held  the  exception  void,  but  the  de- 
vise good  ;  and  that  none  of  the  goods  passed,  save  those  which 
were  in  the  house  at  the  time  the  codicil  was  made. 

In  unison  with  the  last  case  are  the  observations  of  Lord  Eldon, 
in  delivering  his  judgment  in  Howe  v.  The  Earl  of  Dartmouth,(b) 
before  stated. 

So  also  in  the  Attorney  General  v.  Bury.(c)  A.  devised  all  the 
arrears  now  due  and  unjustly  detained  from  him  by  B.  to  be  em- 
ployed in  a  certain  charity.  The  question  was,  whether  arrears 
which  incurred  after  the  date  of  the  will  should  pass  ?  And  the 
Lord  Keeper  decided  in  the  negative,  because  the  devise  was  con- 
fined to  the  arrears  due  when  the  will  was  made. 

But  if  the  bequest  be  general,  as  "  of  all  the  testator's  goods,  &c. 
in  a  particular  house  or  place,"  or  "  which  he  shall  have  or  leave 
there  at  the  time  of  his  death  ;"  whatever  personal  chattels(d)  are 
found  there  at  that  period  will  be  the  property  of  the  legatee. 

Thus  A.  devised  "  all  his  personal  estate  at  a  place  called  W"  to 
his  wife  B.  And  as  to  what  passed  by  this  bequest,  the  Chancellor 
declared,  that  under  those  general  words,  whatever  personal  estate 
the  testator  had  at  the  place  described  at  the  time  of  his  death  pass- 
ed to  the  legatee ;  and  that  the  legacy  was  to  have  relation  to  that 
period,  and  not  to  the  date  of  the  will.(e) 

So  also  in  Gayre  v.  Gayre,(f]  B.  devised  his  house  in  C.  and  all 
his  goods,  &c.  therein  to  D.  for  life,  &c.  The  Lord  Keeper  decreed, 
that  the  goods  and  furniture  in  the  house  at  the  death  of  the  testa- 
tor passed  to  D. 

But  to  confine  the  words  of  the  bequest  to  the  making  of  the  will, 
the  expressions  must  unequivocally  refer  to  the  property  which  the 
testator  then  had ;  otherwise  they  will  not  be  allowed  that  effect.  If 
then  a  testator  were  to  bequeath  to  B.  his  library  now  in  the  custo- 
dy of  C. ;  since  the  word  now  is  more  applicable  to  the  description 
of  where  the  library  was  than  to  limiting  the  legacy  to  identical 
books  in  C.'s  possession,  books  afterwards  added  to  the  library  will 
pass  to  the  legatee.  In  illustration  of  this, — 

B.  bequeathed  in  these  words  :  "  I  devise  my  library  of  books  now 

(a)  Cited  in  Downing  v.  Totunsend,  Ambl.  281.  (6)  7Ves.  147. 

(c)  1  Eq.  Ca.  Abr.  200.  pi.  12.  (rf)  3  P.  Will.  335. 

(e)  Sayer  v.  Sayer,  2  Vern.  688. 

(/)  2  Vern.  538.  and  see  Masters  v.  Masters,  1  P,  Will.  421 — 424.  Green  v.  Sy- 
monda,  1  Bro,  C.  C.  129,  in  notis. 


SECT.  I.]  under  the  Words  of  the  Will.  189 

in  the  custody  of  C.  to  All  Souls  College  in  Oxford ;"  and  he  gave 
to  the  same  college  40001.  more  to  augment  their  library.  B.  after- 
wards bought  several  valuable  books,  which  were  placed  in  the 
library.  And  it  was  the  question,  whether  those  books  passed  to  the 
college  "?  The  then  Master  of  the  Rolls  determined  in  the  affirma- 
tive, upon  the  construction  of  the  word  now ;  his  Honour  being  of 
opinion,  that  now  did  not  relate  to  the  books  which  were  in  the 
library  at  the  date  of  the  will ;  but  that  it  denoted  where  the  library 
was,  and  might  have  been  intended  to  distinguish  that  particular 
library  from  any  other  belonging  to  the  testator. (g) 

It  is,  however,  in  general  essential, (A)  that  the  goods  intended  for 
the  specific  legatee  should  be  actually  in  the  house  at  the  death  of 
the  testator;  for  as  none  but  such  as  are  then  in  that  situation  an- 
swer the  terms  of  the  bequest,  none  other  can  pass  to  the  legatee, 
under  whatever  circumstances  evincing  the  testator's  intention  to 
have  placed  particular  articles  in  the  house,  which  never  were  there, 
if  he  had  not  been  prevented  by  death. (i) 

Accordingly,  in  Grandison  v.  Pitt,(k)  A.  bequeathed  to  B.  his 
goods  and  furniture  in  and  at  his  house  at  C.  and  belonging  to  C. 
He  had  ordered  some  furniture  for  that  house,  which  was  not  carried 
there  before  his  death ;  and  it  was  determined,  on  the  authority  of 
the  case  of  the  Duke  of  Beaufort  and  Lord  Dundonald,(l)  that  such 
furniture  did  not  pass. 

The  period  being  settled  to  which  the  specific  bequest  refers,  the 
next  consideration  is  the  species  of  property  which  will  be  compre- 
hended under  the  expressions  used  by  the  testator. 

We  shall  commence  our  inquiry  with  the  effect  of  the  word 
"  goods  ;"  when  the  bequest  is  of  goods,  generally,  and  also  when 
that  term  is  controlled  by  confining  the  legacy  to  such  goods  as  are 
in,  or  at,  a  particular  place,  and  therefore  specific. 

2.  The  word  "  goods"  is  nomen  generalissimum,  and  when  con- 
strued in  the  abstract,  the  term  will  embrace  all  the  personal  estate 
of  a  testator,  as  bonds,  no.tes,  money,  plate,  furniture,  &c.(m)  Such 
is  its  effect  by  the  canon  law,  as  well  as  by  our  own,  which  seems  to 
have  adopted  the  former.  By  the  civil  law  bona  mobilia,  and  bona 
immobilia  were  the  membra  dividentia  of  all  estates ;  so  that  as 
bona  immobilia  were  land,  bona  mobilia  included  all  personal  pro- 
perty.(w) 

But  when  a  testator,  instead  of  bequeathing  his  goods,  generally, 
restricts  the  import  of  that  word,  by  limiting  its  effect  to  those  in  a 
particular  situation,  as  by  specifically  bequeathing  "  all  his  goods  in 
the  house  at  .#."  In  such  and  the  like  instances,  since  the  goods 
given  are  connected  with  a  subject  in  its  nature  showing  the  sense 
in  which  the  term  was  used  by  the  testator,  viz.  restricted  to  such 
articles  and  things  as  were  in  possession  and  not  in  action,  those 
only  savouring  of  locality ',  will  pass  to  the  legatee.  Such  as  furni- 

(#•)  All  Soul's  College  v.  Coddrington,  1  P.  Will,  597. 
(A)  See  chap.  V.  sect.  1.  sub-sect.  3. 

(z)  See  Lord  Shaftesbury  v.  Lady  Shaftcsbury,  2  Vern.  747.  and  Lord  Eldon's 
observations,  11  Ves.  662.  (k)  2  Vern.  740.  ed.  by  Raithby,  in  a  note. 

(/)  2  Vem.  739.  and  see  Heseltine  v.  Heseltine,  3  Madd.  276. 
(m)  See  1  Atk.  180.  182.  3  Atk.  62.  Moore  v.  Moore,  1  Bro  C.  C.  128. 
(n)  Swinb.  pt.  7.  sect.  10.  Anson.  1  P.  Will.  267. 


190  Rights  of  Specific  Legatees,  [Cn.  IV. 

ture  not  attached  to  the  frcehold,(o)  linen,  plate,  money,  and  bank 
notes,  which  are  considered  money,  but  not  bonds,  mortgages,  re- 
ceipts, &c.  which  have  no  locality  in  the  sense  required  in  these 
cases,  as  will  appear  from  the  authorities  which  we  shall  proceed  to 
state. 

Thus  in  Chapman  v.  Hart,(p]  A.  bequeathed  to  the  plaintiff  in- 
consideration  of  her  care  of  him  during  his  sickness  at  Jlntigua, 
500J.  and  all  his  goods  and  chattels  in  his  house,  and  on  board  the 
Warwick  man  of  war,  to  be  by  her  disposed  of  to  such  of  his  nephews 
and  nieces  as  she  should  find  most  friendly  to  her,  to  be  kept  as 
memoranda  of  him.  And  Lord  Hardwicke  said  "  undoubtedly  no 
goods  and  chattels  can  pass  but  such  as  were  property  in  possession, 
not  choses  in  action,  except  bank  notes,  which  the  Court  considers 
as  cash  ;  for  these  words  may  certainly  extend  further  than  to  bare 
furniture,  and  if  any  ready  money  in  the  house  (if  not  an  extraordi- 
nary sum  and  just  received)  that  would  pass.  In  the  Countess  of 
Aylesburtfs  case,(</)  I  was  of  opinion,  that  by  devise  of  all  things  in 
a  house,  money  and  bank  notes,  passed  to  the  testator's  wife,  and 
that  the  testator  meant  to  consider  the  notes  as  cash,  but  bonds  do 
not  pass,  not  admitting  of  a  locality,  except  as  to  the  probate  of 
wills,  &c."  Again — 

In  Green  v.  Symonds,(r]  B.  bequeathed  to  C.  all  his  goods,  &,c. 
in  his  study,  except  his  books  and  writings.  He  gave  to  D.  all  his 
books  at  his  chambers  in  the  Temple.  At  the  testator's  death  there 
were  in  his  study,  a  considerable  sum  of  ready  money,  securities  for 
money  and  plate  ;  but  he  had  removed  the  books  into  the  country. 
One  of  the  questions  was,  whether  C.  should  take  the  money,  secu- 
rities, &c.  which  were  in  the  study,  or  the  furniture  only.  And  the 
Lord  Chancellor  held,  the  money  and  plate  to  pass,  but  not  the  secu- 
rities for  money,  as  they  were  choses  in  action. 

The  case  of  Moore  v.  Moore,(s)  determined  by  Lord  Thurlmv, 
is  a  leading  authority  upon  the  present  question,  viz.  that  bonds  and 
other  choses  in  action  will  not  pass  to  a  specific  legatee  by  the  words 
"  goods  and  chattels." 

In  that  case,  the  testator  left  a  testamentary  paper  which  was  es- 
tablished in  the  ecclesiastical  court,  and  by  which  he  bequeathed  as 
follows  :  "I  give  all  in  Suffolk  to  R.  Moore  and  heirs.  I  give  to R. 
Moore  all  my  goods  and  chattels  in  Suffolk."  The  testator  had 
goods  and  chattels  in  Suffolk,  and  also  in  other  counties ;  and  in  a 
drawer  at  his  house  in  Suffolk,  a  bond  was  found  which  the  plaintiff 
claimed  specifically  as  goods  and  chattels  in  Suffolk;  and  the  ques- 
tion was,  whether  he  was  entitled  to  it  as  part  of  his  specific  legacy  ? 
And  Lord  Thurlow  said,  the  question  was,  whether  from  the  context 
the  bond  could  pass1?  As  to  the  point  of  construction,  said  his 
Lordship,  the  Court  construed  legacies  according  to  the  canon,  not 
the  common  law.  It  was  argued,  that  bona  included  all  credits,  as 
well  as  chattels  at  common  law,  and  that  the  words  "  all  goods  and 
chattels"  would  pass  bonds  and  all  credits.  As  to  that,  Lord  Thur- 
low observed,  that  the  true  point  was,  whether  the  context  would 

(o)  3  P.  Will.  335.        (/i)  1  Ves.  sen.  271.        (?)  Pofihamv.  Aylesbury,  Amb. 
68.  Corrected  by  Lord  Eldon,  11  Ves.  662.  (r)  1  Bro.  C.  C.  12U.  innotis. 

(*)  Ibid.  127. 


SECT.  I.]  under  the  Words  of  the  Will.  191 

qualify  the  meaning  of  goods  and  chattels  ?  That  whenever  words 
were  used  in  an  instrument,  it  was  a  good  rule  to  say  they  shall  be 
construed  according  to  their  legal  sense.  In  order  to  construe  them 
otherwise,  there  must  be  something  to  show  that  they  are  used  in  a 
less  technical  meaning ;  a  fact  to  be  shown  by  the  person  claiming 
under  the  particular  sense  ;  and  his  Lordship  proceeded  to  the  fol- 
lowing effect :  "  First,  it  has  been  argued,  that  the  words  do  not 
mean  credits ;  I  think  they  do :  secondly,  that  the  words,  when  local, 
do  not  imply  them ;  and,  with  respect  to  specialties,  that  they  have 
no  locality  ;  the  question  is,  whether  this  peculiar  kind  of  credits  has 
that  sort  of  locality  which  was  within  the  idea  of  the  testator  *?  This 
is  not  a  solemn  codicil,  and  requires  therefore  a  more  favourable  con- 
struction. The  sentences  are  mangled  and  imperfect.  It  is  con- 
tended that  this  sort  of  credits  has  locality,  because  the  law  has 
made  it  bona  notabilia.  But  it  is  doubtful  whether  the  Court  Chris- 
tian having  thought  it  sufficiently  local  for  that  purpose,  is  enough 
to  make  it  local  as  to  this.  If  the  question  hung  more  in  doubt  than 
it  does,  I  should  be  obliged  to  follow  Lord  Hardwicke's  case.(f) 
The  judgment  there  goes  clearly  to  this  case.  He  has  compared 
bank  notes  to  money.  CJwses  in  action  have  no  locality.  Bonds 
have  no  more  locality  than  other  choses  in  action,  otherwise  than  by 
drawing  the  jurisdiction  of  the  ecclesiastical  court ;  and  the  judg- 
ment in  that  case  must  prevail.  In  this  also  it  has  weight,  that  the 
house  was  given  to  the  same  person.  Removal  of  goods  for  a  neces- 
sary purpose,  is  not  an  ademption  of  a  specific  legacy  ;  but  would 
you  follow  bonds  and  judgments  in  the  same  manner  *?  It  would  be 
too  much  to  argue  it  in  that  way.  The  authority  of  that  case  must 
go  so  far  as  to  include  bonds  with  other  choses  in  action,  as  to  that 
want  of  locality."  Bill  of  R.  Moore  dismissed. 

The  several  cases  which  have  been  adduced,  concur  in  establish- 
ing that  bank  notes  will  pass  to  the  specific  legatee  under  a  bequest 
of  all  goods  in  the  testator's  house.  The  reason  is,  that  they  are 
considered  money,  and  not  merely  as  representing  money.  This 
being  so,  it  is  an  apparent  consequence  of  the  decisions  made  by  the 
courts  of  law,  that  Exchequer  notes,  promissory  notes  payable  to 
bearer,  Exchequer  bills  and  bills  of  exchange  indorsed  in  blank,  are 
not  to  be  considered  choses  in  action,  but  money  of  the  persons  in 
whose  possession  they  are  ;(w)  and  that  those  instruments  possessing 
equally  with  bank  notes,  the  locality  required,  will  pass  to  .the  lega- 
tee under  the  terms  of  the  above  bequest. 

The  term  "  household  goods"  is  frequently  adopted  by  testators. 
By  that  word,  every  thing  of  a  permanent  nature,  i.  e.  articles  of 
household  which  are  not  consumed  in  their  enjoyment,  that  were 
used  in,  or  purchased,  or  otherwise  acquired  by  a  testator  for  his 
house,  will  pass  to  the  legatee,  as  will  appear  from  the  cases  after- 
wards produced. 

But  if  a  testator,  having  goods  or  household  goods  of  his  own  and 
others,  used  in  his  trade,  specifically  bequeath  his  household  goods, 
or  goods  in  his  house  in  which  there  are  also  goods  in  his  business, 
the  latter  will  not  pass  by  those  words,  but  it  will  be  presumed  that 

(t)  C/iajiman  v.  Hart,  sufira,  p.  190.  («)  See  Collins  v.  Martin,  1  Bos.  & 

Pull.  648.  651.  and  Wookey  v.  Pole,  4  Barn.  &  Aid.  I.  Also  see  Chap.  I.  p.  36. 


192  Rights  of  Specific  Legatees,  [Cn.  IV. 

the  testator  used  them  as  applicable  to  such  goods  and  furniture  with 
which  his  house  was  supplied  for  his  comfort  and  convenience,  and 
not  with  an  intention  to  include  those  that  constituted  the  bulk  of 
his  personal  estate. 

Accordingly,  in  Pratt  v.  Jackson,(x)  B.  a  freeman  of  London,  upon 
his  marriage  with  C.  made  a  liberal  provision  for  her,  and  the  issue 
of  the  marriage,  by  articles  of  settlement ;  and  it  was  declared  that 
the  articles  should  not  extend  to  prevent  C.  from  having  any  legacy 
or  bequest  that  B.  should  think  proper  to  leave  her,  nor  to  all  or  any 
of  the  household  goods,  or  utensils  of  household  stuff,  rings,  plate, 
jewels,  or  linen  of  B.  at  his  death  ;  all  of  which  she  was  to  receive 
and  enjoy  absolutely.  B.  died  intestate,  and  without  issue,  and  A. 
was  his  administrator.  B.  before  his  marriage,  and  when  he  died, 
was  possessed  of  an  hospital  near  Gosport,  which  he  employed  in 
entertaining  sick  and  wounded  seamen  of  the  royal  navy,  under  con- 
tracts with  the  commissioners,  and  which  he  had  furnished  for  the 
purpose,  with  nearly  seven  hundred  beds,  and  other  furniture  suita- 
ble only  for  such  services,  and  not  for  private  use.  These,  C.  claimed 
as  household  goods,  or  utensils  of  household  stuff,  within  the  meaning 
of  the  articles  ;  and  Lord  King  decided  in  favour  of  her  claim.  But 
A.  the  administrator,  appealed  from  the  decree  ;  for  whom  it  was  in- 
sisted, that  the  goods  and  utensils  in  the  hospital  were  used  by  B.  in 
a  public  business  and  undertaking,  in  the  nature  of  a  trade,  at  a  place 
upwards  of  seventy  miles  from  London  where  he  lived,  and  where 
he  never  resided,  nor  had  so  much  as  an  apartment  for  his  own  use  ; 
the  whole  undertaking  being  entirely  carried  on  by  agents  and  ser- 
vants ;  that,  according  to  C.'tf  construction,  she  -might  have  been 
entitled  to  the  whole  ofB.'s  personal  estate,  if  he  had  been  of  a  trade 
in  which  he  might  have  employed  his  estate  in  household  goods, 
or  utensils  of  household,  or  wherein  he  occasionally  might  have 
laid  out  his  money  for  improvement ;  and  that  as  C.  and  her  children 
were  so  liberally  provided  for  by  the  articles,  she  was  not  entitled 
to  a  strained  construction  of  them.  For  all  which  reasons,  the  de- 
cree ought  to  be  reversed,  and  it  was  so  ordered  by  the  House  of 
Lords. 

But  the  reader's  attention  must  be  drawn  to  the  case  of  Nichotts 
v.  Osborn,(y)  in  which  A.  bequeathed  her  "  household  goods"  to  B. 
The  question  was,  whether  her  plate  passed  by  those  words  ?  And 
although  the  Master  reported  that  there  were  manifest  intentions  and 
declarations  of  A.  that  she  did  not  mean  the  plate  to  pass  ;  yet,  since 
he  certified  it  to  have  been  commonly  used  in  the  house,  the  Master  of 
the  Rolls  rejected  all  the  evidence  regarding  the  intention,  there  being 
a  complete  and  plain  will  in  writing,  which  should  not  be  altered  or 
influenced  by  parol  proof.  Upon  a  petition  presented  to  his  Honour 
to  rectify  the  minutes  in  the  cause,  alleging,  that  as  the  registrar 
had  taken  them,  A.'s  plate  generally  was  directed  to  be  delivered  to 
B.;  whereas,  it  appeared  that  part  of  the  plate  she  was  possessed  of 
at  her  death  was  only  in  pawn  to  her,  and  that  doubts  had  arisen 
whether  such  part  would  pass  under  the  general  direction,  his  Honour 

(x)  2  P.  Will.  302.  Reversed  by  the  House  of  Lords,  1  Bro.  Parl.  Ca.  222. 
8vo.  ed.  and  referred  to  by  Lord  Hardivickc  in  Crichton  v.  Symes,  3  Atk.  63.  and 
Le  Farrant  v.  Sfiencer,  1  Ves.  sen.  97.  (y~)  2  P.  Will.  -419.  ed,  by  Cox. 


SECT.  I.]         Binder  the  Words  of  ihe  Will.  193 

declared,  that  as  well  the  plate  which  was  the  testatrix's  own,  as 
that  which  was  pawned  to  her  and  was  in  common  use,  passed  by  the 
bequest. 

In  considering  this  and  the  preceding  case,  it  seems  reasonable 
to  doubt  whether  so  much  of  the  decree  in  the  case  last  stated,  as 
declared,  that  the  plate  in  pawn  to  the  testatrix  A.  passed  to  the 
legatee,  would  be  now  adopted,  for  such  plate  was  not  Jl.'s  to  dis- 
pose of;  and  its  being  used  by  her  affords  no  conclusive  evidence 
of  her  intention  to  include  it  as  part  of  her  household  goods,  since 
there  was  other  plate  to  satisfy  those  words  ;  and  the  use  of  the  plate 
pledged  with  her  was  distinguishable  from  that  of  her  own  as  being 
merely  temporary,  i.  e.  until  redemption  ;  hence,  it  seems  reasonable 
to  infer,  that  by  the  words,  "  household  goods,"  she  only  intended 
to  dispose  of  such  as  were  absolutely  her  own  ;  and  it  is  conceived, 
that  the  principle  of  the  case  of  Pratt  v.  Jackson,  applies  to  the 
present,  which  may  be  considered  as  over-ruled  by  it. 

That  plate  will  pass  by  the  description  of  "  household  goods," 
appears  not  only  from  the  case  last  stated,  but  also  from  the  autho- 
rities after  mentioned.  It  seems,  however,  to  have  been  the  law  of 
the  Court  of  Chancery  at  an  early  period,  before  plate  was  in 
common  use,  that  it  should  not  be  considered  as  included  in  a  be- 
quest of  household  goods  or  furniture ;  but  since  that  time,  as  the 
nation  grew  richer,  and  plate  became  more  general,  the  law  of  the 
Court  altered  by  degrees ;  and  it  seems  to  be  now  settled,  that  plate 
will  be  included  under  those  words,  and  that  parol  evidence  of  a 
contrary  intention  in  the  testator,  will  not  be  admitted. (z) 

In  Flay  v.  Flay,(a)  A.  bequeathed  his  "  household  goods"  and 
stuff  to  his  wife,  and  died,  having  made  his  daughter  executrix. 
The  question  was,  whether  by  the  devise  the  wife  should  have  the 
plate  which  was  commonly  used  about  the  house,  viz.  a  tankard  and 
twelve  silver  spoons ;  and  whether  she  should  have  a  bracelet  that 
she  used  to  wear,  and  some  pieces  of  old  gold,  viz.  two  pieces  which 
were  given  by  her  husband  for  her  concurrence  in  a  fine,  and  some 
other  pieces  that  were  presents  before  marriage  from  her  godfathers 
and  other  friends,  which  she  had  kept  all  the  time  of  the  marriage  ? 
And  it  was  resolved,  that  the  tankard  and  spoons  commonly  used 
about  the  house  passed  by  the  words  "  household  goods :"  and  that 
as  to  the  bracelet  and  pieces  of  bid  gold,  (they  not  being  wanted  to 
pay  debts),  since  they  were  presents  (as  before  mentioned),  and  were 
permitted  by  her  husband  to  be  enjoyed  by  her  while  she  lived,  it 
could  not  be  intended,  without  express  words,  that  he  meant  to  de- 
prive her  of  them  at  his  death ;  and,  therefore,  that  they  should  re- 
main with  her. 

So  in  Snelsonv.  Corbet,(b)  B.  by  will,  gave  all  his  plate  to  his  wife ; 
and  by  a  codicil  he  bequeathed  to  her  the  use  only  of  his  "  house- 
hold goods"  for  life.  And  by  Lord  Hardiuicke: — "  If  13.  had  given 
all  his  household  goods  and  plate  I  should  have  had  some  difficulty; 
but  the  question  now  is,  whether  he  meant  to  include  plate  in  the 
words,  "  household  goods."  There  is  evidence  of  the  plate  being 


(z)  See  the  last  case,  and  2  Vem.  638.     1  P.  Will.  425.     3  P.  Will.  419. 
(a)  2  Freem.  64.  (b)  3  Atk.  370. 

VOL.  i.  B  b 


194  Rights  of  Specific  Legatees,  [Cn.  IV. 

used  in  B.'s  house,  and  I  am  of  opinion,  therefore,  that  household 
goods  do  include  plate." 

From  the  cases  before  stated  and  referred  to,  it  appears  that  the 
circumstance  of  the  plate  being  in  common  use  was  considered  to 
be  material.  But  in  Kelly  v.  Powlet,(c)  the  Master  of  the  Rolls 
denied  that  it  was  of  any  consequence  whether  the  plate  was  in 
common  use  or  not,  provided  it  were  suitable  to  the  situation  and 
quality  of  the  testator. 

It  has  been  decided,  that  in  bequests  of  "  household  goods,"  all 
such  articles  found  in  the  house  whose  use  is  in  their  consumption, 
or  do  not  naturally  fall  within  the  description  of  "  household  goods," 
were  not  meant  by  the  testator  to  be  included,  and  therefore  did 
not  pass  to  the  specific  legatee. 

Thus,  in  Slanning  v.  Style,(d)  A.  after  giving  to  his  wife  specific 
chattels  for  life,  bequeathed  to  her  his  tea-table,  tea-kettle,  and  all 
his  pewter,  brass,  linen,  and  woollen,  with  "  all  his  household  goods," 
and  implements  of  household,  in  or  about  his  dwelling  house,  to  be 
at  her  disposal.  And  all  his  stock  of  corn,  and  the  residue  of  his 
personal  estate,  he  gave  to  his  three  sisters  equally,  whom  he  had 
appointed  executors.  The  widow  claimed  the  malt  and  hops  in  the 
house,  also  the  ale  and  beer  in  it,  together  with  the  guns,  pistols, 
and  the  clock ;  insisting  that  they  were  intended  for  her  by  the 
bequest  of  "  household  goods  and  implements  of  household,"  since 
they  were  goods  in  the  house,  and  necessary  for  the  use  and  support 
of  the  family.  But  by  Lord  Talbot,  Ch.  "  These  things  which  are 
victuals,  and  whose  use  is  in  their  consumption,  cannot,  in  their 
common  natural  sense,  be  taken  to  be  household  goods,  and  pass 
under  that  denomination;  they,  therefore,  do  not  belong  to  the 
widow,  but  to  the  executors,  the  residuary  legatees.  Neither  will 
the  guns  and  pistols,  if  used  in  riding  or  the  shooting  of  game,  pass 
to  her  by  those  words,  although  they  may  in  some  sense  be  said  to 
be  for  defence  of  the  house;  but  the  clock  in  the  house,  if  not  fixed 
thereto,  will  be  included  in  the  words,  "  household  goods." 

The  last  case  appears  to  be  a  decision  that  those  articles  of  furni- 
ture only,  which  are  detached  from  the  freehold,  will  pass  by  the 
words  "  household  goods  and  implements  of  household."  The 
principle  seems  to  be,  that  such  articles  alone  were  within  the  con- 
templation of  the  testator,  and  that  an  intention  ought  not  to  be 
imputed  to  him  in  the  use  of  those  general  words  to  include  fixtures, 
which  are  parts  of  the  freehold,  and  go  with  it  to  the  heir  or  de- 
visee, (e) 

The  words  of  which  we  have  been  treating  were  limited  to  such 
goods  and  household  goods  as  were  in  a  particular  place.  But  the 
import  of  those  terms  will  be  greatly  enlarged  when  the  expressions 
of  the  bequest  are  extended  not  only  to  such  goods  or  household 
goods  as  are  in,  but  to  those  also  about,  the  testator's  dwelling- 
house  and  outhouses.  An  instance  of  this  occurred  in  the  follow- 
ing case: 

fc)  Ambl.  605.  approved  of  by  Lord  Atvanley  in  Porter  v.  Tournay,  3  Ves.  313. 

(rf)  3  P.  Will.  334.    See  also  Porter  v.  Tournay,  3  Ves.  313. 

(e)  See  Elwes  v.  Maw,  3  East,  51.  where  the  prior  cases  are  collected.  Also, 
Davis  v.  Jones,  2  Bam.  &  Aid.  165.  and  Buckland  v.  Butterfield,  2  Brod.  & 
Bing.  54. 


SECT.  I.]  under  the  Words  of  the  Will.  195 

In  Gower  v.  Gmver,(f)  Jl.  directed  by  his  will  that  all  his  plate, 
furniture,  "  household  goods,"  and  all  books  and  other  furniture  of 
his  library,  and  all  stores  and  implements  of  all  sorts  and  kinds,  and 
"  other  goods  and  chattels"  whatsoever,  which  should  be  in  and 
about  his  dwelling-house  and  outhouses  at  13.  at  his  death,  should 
be  preserved  for,  and  held  and  enjoyed  by  such  person  or  persons 
as  should  be  entitled  to  his  estates  in  C.  and  D.  under  the  limita- 
tions in  his  son's  marriage  settlement.  The  question  was,  whether 
running  horses  which  were  at  B.  at  the  death  A.  passed  by  the 
above  words  °l  And  Lord  Henley  thus  expressed  himself:  "  A.  in- 
tended that  nothing  should  be  disturbed  about  the  estate  at  B.,  but 
that  every  thing  there,  whether  of  profit  or  amusement,  should  pass. 
I  am  of  opinion  that  the  running  horses  are  comprehended  within 
the  words." 

The  remarks  which  have  been  made  upon  the  import  of  the  words 
"  goods"  and  "  household  goods,"  equally  apply  when  the  terms 
of  the  specific  bequest  are  of  all  the  testator's  property  or  personal 
estate,  in,  or  in  and  about,  his  dwelling-house.  Hence,  neither 
bonds  nor  other  choses  in  action,  and  probably  Exchequer  notes, 
&c.  as  before  mentioned, (g)  will  pass  to  the  specific  legatee. 

Accordingly  in  the  case  of  Jones  v.  Sefton,(h)  B.  bequeathed  to 
Lady  Sefton  all  the  residue  of  his  personal  estate  and  effects  of  what 
nature  and  kind  soever,  except  such  parts  as  should  be  in  and  about 
his  house  at  C.;  which  parts  he  gave  to  his  son  Lord  Sefton,  and 
directed  his  household  furniture  to  go  as  heir-looms.  B.  also  gave 
all  arrears  of  rent  which  should  be  due  to  him  from  his  Lancashire 
estate  at  his  death,  to  his  son.  By  the  decree  an  inquiry  was 
directed  as  to  what  parts  of  B.'s  personal  estate  were  in  and  about 
his  house  at  his  death,  and  the  natures  of  them.  It  appeared  from 
the  report,  that  in  an  iron  chest,  in  which  the  steward  kept  the  cash 
arising  from  rents  and  profits,  was  found  a  bond  to  B.  dated  in  JYb- 
vember  1784,  for  securing  2151.  10s.  arrears  of  rent,  and  in  cash 
373?.  2s.  9rf.  The  question  was,  whether  the  bond  and  cash  found 
in  the  iron  chest  passed  to  Lord  Sefton  under  the  exception  and 
disposition  of  the  arrears  of  rent  *?  And  Lord  Rosslyn  determined 
in  the  negative. 

It  is  to  be  observed,  that  as  in  the  authorities  before  stated,  so  in 
the  last  case,  the  bond  in  the  house  was  held  not  to  pass  to  the  spe- 
cific legatee,  under  the  description  of  part  of  the  testator's  personal 
estate.  And  although  those  terms  would  in  general  include  ready 
money,  and  even  bank  notes,  (as  appears  from  the  cases  before  cited  in 
the  consideration  of  the  import  of  the  word  "  goods"),  and  probably 
Exchequer  notes,  &c.  as  before  stated  ;(t)  yet  since  the  cash  for 
arrears  of  rent,  in  the  present  case,  found  in  the  iron  chestj  was  not 
strictly  and  indisputably  the  testator's  own,  nor  in  his  possession, 
but  in  that  of  his  steward;  and  whether  such  identical  money  was 
or  was  not  the  property  of  the  testator  vested  in  contingency,  viz. 
depended  upon  an  account  between  him  and  his  steward,  the  Court 
appears  to  have  decided,  upon  the  presumed  intention  of  the  testator 

(/)  Ambl.  612.     2  Eden.  201.     And  vide  Lord  Alvanley's  remark  upon  this 
case,  3  Ves.  313. 
(3-)  Seesu/zrc,  p.  191.  (A)  4  Ves.  166.  (t)  Seesw/m*,  p.  191. 


196  Rights  of  Specific  Legatees)  [Cn.  IV. 

not  to  give  specifically  this  identical  cash  under  those  circum- 
stances, that  it  did  not  pass  to  Lord  Sefton,  but  to  Lady  Sefton,  as 
residuary  legatee. 

So  also  in  Fleming  v.  Brook,(k]  A.  bequeathed  to  the  following 
effect :  "  I  give  to  B.  all  my  property,  of  whatever  nature  or  kind  the 
same  may  be,  that  may.be  found  in  B.'s  house  in  C.,  except  a  bond 
of  D.  in  my  writing  box  in  the  said  house  contained."  There  were 
found  in  B.'s  house  a  deed  of  mortgage  from  E.  to  A.  and  a  bond  as 
a  collateral  security ;  also  several  banker's  accountable  receipts  for 
large  sums  of  money.  B.  insisted  that  all  those  properties  passed 
to  her  under  the  bequest,  and  that  the  present  case  differed  from  all 
those  authorities  in  which  it  had  been  held  that  choses  in  action 
would  not  pass  under  such  a  bequest,  because  A.  had  expressly  ex- 
cepted  one  chose  in  action,  which  showed  his  intention  that  the  others 
should  pass.  But  Lord  Redesdale  determined,  on  the  authority  of 
Moore  v.  Moore,(l)  which  was  decided,  after  a  view  of  all  the  cases, 
that  choses  in  action  had  no  locality  ;  and  therefore  that  neither  the 
mortgage,  nor  the  bond,  nor  the  banker's  receipts,  passed  to  B.,  but 
that  bank  notes  would  have  passed,  as  they  were  quasi  cash.  His 
Lordship  did  not  consider  the  exception  in  the  will  of  one  security 
sufficient  evidence  of  the  testator's  intention  to  pass  the  other  choses 
in  action. 

This  case  is  only  adduced  as  an  authority  that  a  specific  legacy 
of  all  a  testator's  property  in  a  particular  house  will  not  pass  choses 
in  action  there.  But  the  question  is  very  different  when  exception 
is  made  by  the  testator  out  of  what,  in  his  conception,  he  had  given 
by  the  words  in  his  will,  without  the  clause  of  exception ;  and  it  is 
from  this  circumstance  that  the  correctness  of  Lord  Redesdale's  de- 
cree may  be  questioned.  The  cases  restraining  the  general  import 
of  a  bequest  of  all  a  man's  goods,  property,  or  personal  estate,  in  a 
particular  place,  are  founded  upon  the  presumed  intention  that  the 
testator  merely  meant  to  pass  such  articles  as  belonged  or  were  suita- 
ble to  the  place  or  house  described ;  so  that,  in  general,  choses  in 
action  will  not  be  included  in  such  a  bequest.  But  when  a  testator, 
by  excepting  a  particular  species  of  his  personal  estate  out  of  the 
bequest,  and  which  would  not  have  passed  if  the  exception  had  been 
omitted,  it  is  clear  that  he  used  the  legatory  words  in  a  sense  which 
he  conceived  would  have  passed  the  excepted  subject,  as  also  all 
others  falling  under  a  similar  description.  Then,  in  the  present  case, 
•A.'s  particular  exclusion  of  one  bond  from  the  operation  of  the  be- 
quest showed  that  he  had  choses  in  action  in  contemplation,  and  that 
he  conceived  the  words  he  had  used  would  have  passed  securities 
for  money,  and  consequently  the  bond  of  D.,  unless  it  were  except- 
ed. His  meaning,  therefore,  appears  to  have  been  to  include  all  se- 
curities in  B.'s  house,  except  D.'s  bond ;  and  the  words  "  all  my 
property,  &,c."  being  sufficiently  comprehensive  to  include  and  pass 
them,  a  doubt  cannot  but  exist  of  the  soundness  of  his  Lordship's 
decree,  which  doubt  is  countenanced  by  a  decision  of  Lord  Eldon 
in  Hotham  v.  Sutton,(m)  a  case  similar  to  the  last  in  principle,  and 
which  will  be  afterwards  stated  in  this  section. 

(£)  1  Scho.  ScLefroy,  318.  (/)  Stated  sitflra,  p.  190. 

(m)  15  Ves.  322—326.  and  see  Crichton  v.  Symes,  3  Atk.  61.  stated  infra. 


SECT.  I.]  under  the  Words  of  the  Will.  197 

That  a  bequest  of  "  all  things"  in  a  particular  house  will  not  pass 
choses  in  action  as  bonds,  &c.  was  decided  by  Lord  Hardwicke  in 
the  case  of  Popfiam  v.  Lady  Jlylesbury,  before  mentioned. (ri) 

In  the  case  of  Stuart  v.  the  Earl  of  Bute,(o)  a  very  extensive  in- 
terpretation was  put  upon  the  word  "  things ;"  and  it  was  not,  as 
usual,  restricted  to  articles  ejusdem  generis  with  those  previously 
enumerated,  in  consequence  of  an  intention,  inferred  from  the  terms 
of  the  whole  bequest,  that  the  word  was  used  in  its  fullest  and  most 
enlarged  acceptation.  The  construction  was  first  made  by  Lord 
Rosslyn,  and  afterwards  confirmed  by  Lord  Eldon,  after  much  he- 
sitation. 

The  case  was,  that  A.  bequeathed  in  the  following  words :  "  I 
give  all  the  wagon  ways,  rails,  staiths,  and  all  implements,  utensils, 
and  things,  which  at  my  death  shall  or  may  be  used  or  employed  to- 
gether with,  or  in,  or  for,  the  working,  management,  or  employment 
of  any  of  my  collieries  or  shares  of  collieries  in,  &c.  and  which  are 
or  shall  or  may  be  deemed  or  considered  to  be  as  or  of  the  nature  of 
personal  estate,  to  my  executors  ;  upon  trust  to  permit  the  same  from 
time  to  time  to  be  used,  held  or  enjoyed  by  the  person  or  persons 
respectively  entitled  by  this  my  will,  to  the  use  and  enjoyment  of 
my  several  freehold  manors,  messuages,  collieries,  lands,  and  here- 
ditaments, or  parts  or  shares  of  freehold  manors,  &c.  as  far  as  the 
nature  of  the  said  property,  and  the  rules  of  law  and  equity  will 
admit."  Upon  a  question  whether  the  money  due  from  the  fitters, 
money  in  the  bank,  balance  in  the  cash  book  in  C.'s  hands,  balances 
owing  from  several  persons,  coals  resting  at  the  pits  and  staiths,  corn, 
hay,  horses,  timber,  and  deals,  oil  and  candles,  and  also  all  wagons 
and  wagon  materials,  wagon-ways  and  materials  belonging  thereto, 
fire  engines,  machines,  and  gins  not  erected  and  fixed,  ropes,  iron, 
and  materials  at  the  pits,  stables,  storehouses,  and  horses  trappings, 
gears,  &c.  not  absolutety  employed  or  ustd  at  tlie  testator's  death,  to- 
gether with,  in  or  for  the  working,  management,  and  employment  of 
any  of  the  collieries,  or  shares  of  collieries,  were  or  not  included 
within  the  terms  of  the  above  bequest ;  it  was  determined  in  the  af- 
firmative, upon  the  ground  that  the  several  enumerated  articles  were 
necessary  for  carrying  on  the  trade,  and  therefore  intended  by  the 
testator  to  be  given  to  the  devisees  of  the  collieries  ;  a  construction 
which  the  Court  adopted  upon  the  same  principle  in  the  case  of 
Gowerv.  Gower,  before  stated.(jp) 

3.  It  has  been  shown  that  specific  bequests,  by  the  words  "  goods, 
personal  estate,  property,  or  all  things,  in  or  at  a  testator's  house, 
&c."  would  not  pass  to  the  legatee  choses  in  action;  and  the  reason 
has  been  given. (q) 

But  it  has  happened,  that  after,  or  preceding  the  word  "  goods,. 
&c,"  the  testator  has  enumerated  particular  kinds  of  chattels  or  per- 
sonal estate ;  or  after  such  an  enumeration  he  has  concluded  the 
bequest  in  giving  "  all  other  things,"  or,  "  all  other  goods,"  in  the 
place  described,  to  the  legatee.  Under  the  above  general  and  com- 

(n)  Ambl.  68.  seesufira,  p.  190.  (o)  3  Ves.  212.     llVes.  457, 

(fi)  See  supra,  p.  195.  and  in  Ambl.  612.    See  also  Boon  v.  Cornforth,  2  Ves. 
sen.  278—280.  stated  in  next  page. 
(?)  See  supra,  p.  190. 


198  High ts  of  Specific  Legatees)  [Cn.  IV. 

prehensive  words,  specific  legatees  have  claimed  whatever  personal 
proper!  \  \vas  there,  whether  consisting  of  personal  chattels,  or  secu- 
rities for  money ;  but  it  is  a  rule  of  construction,  perfectly  well  set- 
tled, that  the  generality  of  those  expressions  is  to  be  explained  by, 
and  confined  to  the  descriptive  words,  i.  e.  restricted  to  such  species 
of  property  as  are  ejusden  generis  with,  and  would  pass  by  the  par- 
ticular words  of  enumeration  :(r)  so  that  as  bonds  and  other  choses 
in  action  would  not  pass  by  the  bequest  of  goods,  &c.  at  a  particu- 
lar place,  neither  will  they  pass  by  the  addition  of  the  apparently 
more  general  expressions  of  "  all  other  things,"  or,  "  all  other 
goods,"  or  the  like;  nor  will  bank  notes  or  ready  money  pass  in 
those  cases;  for  when  the  word  "goods,  property,  or  personal  estate," 
are  followed  or  preceded  by  a  specification  of  chattels  of  a  particu- 
lar denomination,  as,  household  furniture,  &c.  it  is  inferred  that  the 
testator  used  the  word  "  goods,  &c."  in  the  same  limited  sense  as 
those  that  immediately  followed  or  preceded.  Articles  of  property, 
therefore,  to  which  the  explanatory  words  apply,  will  alone  pass  to 
the  specific  legatee  (except  a  contrary  intention  appear,  as  in  the 
case  of  Stuart  v.  J3ute,(s)  last  stated.)  And  since  those  words  do 
not  embrace  bank  notes  or  ready  money,  the  terms  "  goods,  &c." 
explained  and  confined  as  above,  will  riot  have  that  effect,  although 
they,  if  standing  alone,  would  have  passed  that  species  of  property 
as  has  been  before  shown.  The  principle  of  decision  in  these  cases 
is  manifest  intention  collected  from  the  will,  that  testators  made 
use  of  the  words  "  goods,"  &c.  in  a  more  confined  sense  than  their 
usual  legal  acceptation;  which,  as  we  have  seen,  is  the  same  foun- 
dation upon  which  courts  of  equity  have  determined,  that  by  a  lega- 
cy of"  all  goods  at  «#."  bonds  and  choses  in  action  will  not  pass.(J) 
To  illustrate  these  remarks  by  examples, — 

In  Trafford  v.  Berrige,(u)  A.  bequeathed  to  his  niece  all  his  goods, 
chattels,  household  stuff,  furtiiture,  and  other  things,  which  were  then, 
or  should  be  in  his  house  at  the  time  of  his  death.  Sometime  after- 
wards A.  died,  leaving  about  265Z.  in  ready  money  in  the  house ;  and 
it  was  decreed  that  this  ready  money  did  not  pass,  for,  by  the  words 
other  things,  should  be  intended  things  of  like  nature  and  species 
with  those  before  mentioned. 

In  the  last  case  we  observed  the  word  "  goods,"  explained  by 
chattels  and  household  stuff,  showing  that  the  testator  used  the  word 
"  goods"  in  the  sense  of  household  furniture  and  the  like ;  which 
construction  being  once  ascertained,  it  is  carried  on,  upon  the  basis 
intention,  to  the  last  expression,  "  other  things,"  by  confining  its 
operation  to  things  ejusdem  generis  with  those  before  described. 

Intention  being  the  foundation  of  the  restricted  construction  put 
.upon  general  words  superadded  to  other  more  limited  expressions, 
intention  may  also  produce  different  decisions  in  respect  of  the  same 
general  words  in  the  same  will,  viz.  it  may  restrain  the  general  words 
in  one  clause,  and  suffer  their  extension  in  another. 

An  instance  of  this  occurred  in  Boon  v.  Cornforth,(w)  in  which  A. 

(r)  Porter  v.  Tournay,  3  Ves.  311-313.  Rawlings  v.  Jennings,  13  Ves.  39.  46. 
stated  infra.  Suttonv.  Sharp,  iRuss.  146.  (s)  3  Ves.  212.  11  Ves.  657. 

(0  See  supra,  p.  189.  (u)  1  Eq.  Cas.  Abr.  201.  pi.  14. 

(w)  2  Ves.  sen.  278.  280.  and  Suppl.  [139.]  and  see  Stuart  v.  the  Earl  viBule, 
supra,  p.  197,  and  Goiver  v.  Goiver,  supra,  p.  195. 


SECT.  I.]  under  the  Words  of  the  Will  199 

devised  to  his  daughter  B.  the  equal  possession  and  right  for  life  to 
live  at  Le  Place  with  her  husband,  to  have  the  use  of  the  house,  plate, 
linen,  and  "  every  thing  else,"  as  her  occasion  should  require,  as 
also  stabling  and  fields,  or  "  any  thing  else,"  notwithstanding 
entail  after  limited.  ,#.  also  directed  that  all  his  goods,  furniture, 
plate,  books,  pictures,  "  and  every  thing  else,"  which  should  be  at  his 
house  at  Lee  at  his  death  should  remain  there  to  be  enjoyed  by  the 
person  in  possession  of  it  for  the  time  being;  and  he  then  set- 
tled that  house  and  lands  upon  his  nephews  and  their  issue.  A  ques- 
tion arose  whether  provisions  of  any  kind,  either  for  the  house  or 
stable,  as  liquors,  corn,  hay,  &c.  and  some  curiosities  that  A.  had  in 
his  house,  china,  japan,  India  pieces  for  handkerchiefs,  watches,  and 
a  cane,  passed  by  either  and  which  of  those  clauses'?  And  Lord 
Hardwicke  said,  that  considering  the  point  on  the  last  clause  which 
makes  the  articles  heir-looms,  "  every  thing  else  which  at  my  de- 
cease shall  be  at  my  house,"  must  be  construed  things  ejusdem  ge- 
neris, such  as  are  proper  to  go  with  the  house  as  heir-looms.  He, 
therefore,  decided,  that  the  cane,  watches,  and  India  pieces,  not 
made  up,  could  not  pass  as  heir-looms,  much  less  the  liquors,  hay, 
&c.;  for  heir-looms  meant  things  fixed  to  the  freehold,  the  china,  and 
every  thing  of  that  kind  set  up  as  ornaments,  and  to  have  continuance 
along  with  the  house,  and  not  consumable  as  those  things  were.  But 
with  respect  to  the  first  clause,  his  Lordship  said,  its  construction 
was  more  extensive,  comprising  corn,  hay,  and  provisions,  in  the 
house,  for  it  was  the  intention  to  provide  for  BSs  occasions  of  re- 
siding and  living  there,  not  for  any  other  occasions.  And  his  Lord- 
ship determined  that  this  clause  included  all  kinds  of  provisions  for 
man  and  horse  in  the  house  or  stable. 

To  the  same  principle  of  intention,  the  decision  in  the  case  of 
Woolcomb  v.  Woolcomb,(x)  is  to  be  referred.  In  that  case,  B.  be- 
queathed all  the  furniture  of  his  parsonage  house,  and  all  his  plate, 
household  goods,  and  other  goods,  (except  books  and  papers,)  and 
all  his  stock  within  doors  and  without,  and  all  his  corn,  wood,  and 
other  goods,  belonging  to  his  parsonage  house,  to  his  wife ;  and 
made  J.  S.  residuary  legatee.  The  question  was,  whether  ready 
money,  cash,  and  bonds,  should  pass  to  the  wife  by  these  words  *? 
It  was  contended,  that  the  devise  of  all  the  testator's  goods  should 
carry  all  his  personal  estate  ;  omnia  bona,  being  words  of  the  larg- 
est extent  and  signification,  with  regard  to  personals.  To  which 
it  was  answered,  that  if  the  devise  of  all  the  testator's  goods  were 
to  be  taken  in  so  large  a  sense,  it  would  disappoint  the  bequest  of 
the  residue,  which  could  not  be  permitted  ;  that  it  seemed  reason- 
able the  words  "  other  goods"  should  be  understood  to  signify 
things  ejusdem  generis  with  household  goods,  in  order  that  the  whole 
will  might  take  effect ;  and  consequently,  that  the  testator's  ready  mo- 
ney, cash,  and  bonds,  should  not  pass  in  this  case  by  the  word 
"goods,"  but  belong  to  the  residuary  legatee.  .  And  of  that  opinion 
was  Lord  Chancellor  King. 

So  in  Timewell  v.  Perkins,(y)  C.  made  the  following  bequest : 
"  I  give  to  Mary  Timeioell  all  mortgages,  ground  rents,  judgments, 
&c. ;  whatever  I  have  or  shall  have  at  my  death,  as  plate,  jewels, 

(*)  3  P.  Will.  112.  (y)  2  Atk.  103. 


200  Rights  of  Specific  Legatees,  [Cn.  IV. 

linen,  household  goods,  coach  and  horses,  for  her  use  ;  that  no  hus- 
band shall  intermeddle  therewith,  and  at  her  death  to  give  them  to 
whom  she  pleases."  Question,  whether  goldsmith's  notes  and  bank 
bills,  passed  to  Mary  under  the  above  words  9  And  by  Lord 
Hardwicke,  C.:  "  I  am  of  opinion  the  goldsmith's  notes  and  bank 
bills  did  not  pass  by  the  will  to  Mary  Timewell;  for  though  there 
is  no  doubt  but  the  general  words,  whatever  I  have  or  shall  have  at 


'in  fi  death,  would  have  passed  them ;  yet  the  particular  words  which 
follow,  as  plate,  jewels,  &c.  confine  and  restrain  them  to  things  of 
the  same  nature  ;  and  so  laid  down  in  the  case  of  Trafford  v.  Ber- 
rige."(z) 

Upon  the  principle  of  the  last  cases,  Lord  Hardwicke  determined 
the  case  of  Crichton  v.  Symes ;(«)  in  which  D.  bequeathed  to  E.  all 
her  goods,  wearing  apparel  of  what  nature  and  kind  soever,  except 
her  gold  watch.  E.  claimed  the  residue  under  those  words.  But 
Lord  Hardwicke  was  of  opinion,  that  the  words  were  not  intended 
to  be  a  residuary  clause,  as  appeared  from  the  circumstance  of  D. 
afterwards  giving  to  her  executor  a  legacy  of  [50i. ;  and  that  al- 
though it  had  been  insisted  against  E's.  claim,  that  the  words  wear- 
ing apparel  explained  !>.'*  meaning,  as  if  she  had  said  all  my  goods, 
(to  wit)  my  wearing  apparel ;  yet  his  Lordship  said,  that  wearing 
apparel  must  be  construed  the  same  as,  and  wearing  apparel ;  and 
it  was  his  opinion,  that  as  the  words  stood  in  the  will,  D.  only  in- 
tended to  give  her  wearing  apparel,  ornaments  of  her  person,  house- 
hold goods  and  furniture,  and  no  other  parts  of  her  personal  estate ; 
and  that  the  ornaments  of  her  person  were  meant  to  be  given,  ap- 
peared as  well  from  the  latitude  of  the  expression,  "  goods  and  wear- 
ing apparel,"  as  from  the  exception  of  the  gold  watch.  His  Lord- 
ship therefore,  decreed  according  to  the  opinion  which  he  had  ex- 
pressed. 

In  the  last  case  it  is  observable,  that  Lord  Hardwicke  considered 
it  material,  in  showing  the  testatrix  used  the  word  "  goods"  in  a  res- 
tricted sense,  that  she  afterwards  gave  a  money  legacy  to  her  exe- 
cutor. This  circumstance  has  also  been  dwelt  upon  in  other  cases, 
as  clear  manifestation  of  intention  to  confine  the  import  of  the  term 
"  goods,"  so  as  to  prevent  it  passing  ready  money  ;  and  the  construc- 
tion appears  reasonable  and  conclusive,  that  when  a  testator  be- 
queaths to  a  person  a  money  legacy,  to  whom  he  also  bequeaths 
all  his  goods  and  other  things  in  a  particular  place,  he  could  not 
mean  by  those  expressions  to  pass  his  ready  money  there,  since  he 
had  already  expressly  given  to  the  same  person  so  much  of  that  spe- 
cies of  estate  as  he  intended  for  him. 

Thus  in  Roberts  v.  Kuffin,(b]  A.  bequeathed  to  his  daughter  "  all 
~oods  and  things  of  every  kind  and  sort  whatever,  which  should  be 
found  in  her  closet  at  his  death."  The  question  was,  whether  451. 
Os.  Id.  in  money,  found  in  the  closet  at  that  period,  would  pass  to 
the  daughter  9  And  Lord  Hardwicke  said,  that  if  this  will  had 
been  construed  strictly  in  law  or  equity,  he  was  of  opinion  it  would 
not  have  carried  the  45Z.  and  Id.  to  the  daughter ;  for  in  the  outset 
of  his  will,  he  gave  her  a  money  legacy,  which  must  be  presumed  to 

(z)  Ante.  p.  198.  (a)  3  Atk.  61. 

(b)  2  Atk.  113.  and  see  Porter  v,  Tournay,  3Ves.  311.  stated  infra. 


SECT.  I.]  under  the  Words  of  the  Will.  201 

be  the  whole  he  intended  her  by  way  of  money  legacy ;  besides, 
said  his  Lordship,  in  the  clause  in  dispute,  goods  were  first  named, 
therefore  the  subsequent  word  things  must  be  confined  to  household 
goods,  and  to  what  was  of  the  same  species,  for  it  would  be  unnatu- 
ral to  extend  it  to  money.  A  closet,  too,  was  a. very  improper  place 
to  refer  to  for  money.  The  testator  would  have  certainly  mention- 
ed cabinet,  or  bureau,  or  any  other  thing  where  money  is  usually 
kept,  if  he  had  intended  a  further  bequest  of  money ;  but  by  refer- 
ring to  a  closet,  it  is  reasonable  to  believe  he  meant  furniture  only, 
which  the  daughter  made  use  of  in  the  closet. 

With  the  last'  may  be  classed  an  anonymous  case,  reported  in 
Finch's  Precedents  in  Chancery,(cJ  in  which  B.  bequeathed  to  his 
wife  12001.  in  money  and  "  alj  the  goods  and  chattels,  plate,  jewels, 
and  household  stuff,  and  stock  upon  the  ground,  in  and  belonging 
to  his  house  in  JV. :"  in  which  house  there  was  40C/.  in  money. 
The  question  was,  whether  this  last  sum  passed  to  the  wife  under 
the  above  words  *?  And  it  was  decreed  that  it  should  not ;  for  4001. 
was  a  considerable  sum  of  money,  of  which  the  testator  could  not 
be  supposed  ignorant ;  and  that  had  he  intended  the  money  should 
have  passed,  he  would  not  have  connected  it  with  the  general  words 
all  his  goods  and  chattels,  but  at  first  would  have  given  to  his  wife 
16001. 

The  same  .principle  upon  which  the  last  several  cases  were  found- 
ed, produced  Lord  Thurlow's  decree  in  the  cases  next  stated ;  in 
which  he  decided,  that  a  specific  bequest  of  cabinet  curiosities,  nam- 
ing some  of  them,  as  gems,  medals,  coins,  &.c.  concluding  with 
the  general  words,  "  and  other  valuable  things,",  would  not  pass  ar- 
ticles used  or.  prepared  to  be  worn  by  the  testatrix,  viz.  ornaments 
of  her  person.  But  that  those  general  words  were  to  be  confined 
to  things  ejusdem  generis  with  those  previously  described. 

The  case  alluded  to  is  Cavendish  v.  Cavendish,(d)  in  which  A. 
bequeathed  to  B.  her  collection  or  cabinet  of  curiosities,  consisting 
of  coins,  medals,  gems,  and  oriental  stones,  and  other  valuable  things, 
hanging  shelves,  snuff  boxes,  bust  of  C.  on  .the  stair  case,  her  Flo- 
rentine cabinet  of  oriental  stones  in  the  second  room,  and  the  Japan 
cabinet  in  the  bed  chamber,  formerly  belonging  to  D.  The  ques- 
tion was,  whether  a  diamond  solitaire,  a  pair  of  ear-rings,  a  bow-knot, 
and  some  pearls,  ornaments  of  JlSs  person,  passed  to  B.  And  it  was 
in  proof  for  B.  that  those  articles  were  frequently  shown  as  parts  of 
./?.'*  cabinet,  and  included  in  the  inventory  of  her  curiosities.  It  was 
also  in  evidence  against  B.'s  claim,  that  in  trade  a  distinction  in 
sense  prevailed  between  the  words  "gems"  and  "jeweJs."  That 
the  latter  meant  precious  stones  set  and  prepared  for  wear,  and  the 
former,  stones  kept  for  curiosity  only.  The  Master  having  reported 
that  the  above  articles  were  occasionally  worn  by  the  testatrix,  Lord 
Thurlow  determined  that  they  did  not  pass  to  B.;  observing,  that 
things  to  pass  under  the  will  must  be  ejusdem  generis  with  those  ex- 
pressly devised  ;  but  that  ear-rings  and  other  ornaments  of  the  per- 
son were  parts  of  the  personal  estate,  and  not  specimens  of  natural 
curiosities. 

But  although  it  be  the  settled  doctrine  of  a  court  of  equity,  that 

(c)  Page  8.  (</)  1  Bro.  C.  C.  467. 

VOL.  i.  C  c 


202  Rights  of  Specific  Legatees,  [Cn.  IV. 

general  and  comprehensive  expressions  used  in,  or  at  the  conclusion 
of  a  specific  bequest  of  goods,  plate,  linen,  furniture,  &c.  are  to  be 
restrained  to  articles  ejusdem  generis,  with  those  particularly  enu- 
merated, and  therefore  not  comprehending  ready  money  or  choses  in 
action ;  yet  since  the  presumed  intention  of  testators  is  the  basis  of 
that  construction,  if  their  intention  appear  to  include,  by  the  gene- 
ral words,  ready  money  or  choses  in  action,  the  terms  will  have  that 
effect.  This  may  happen  when  the  intention  is  made  apparent  by  a 
testator  excepting  out  of  such  terms  of  bequest  a  species  of  personal 
estate,  that  would  not  have  passed  by  them,  as  has  been  mentioned, 
in  observing  upon  the  case  of  Fleming  v.  Brook. (e)  In  illustra- 
tion of  the  above  remarks,  we  shall  refer  to  a  decision  of  Lord  Eldon  : 

In  Hotham  v.  Sutton,(f)  Jl.  having  two  sons  and  a  daughter,  B., 
C.  and  D.,  after  bequeathing  for  their  benefits  a  sum  of  12,1001. 
three  per  cent  consols,  gave  all  the  residue  of  her  personal  estate 
and  effects  to  her  youngest  children,  C.  and  D.  as  therein  mentioned. 
A.  on  the  day  of  making  her  will  executed  a  codicil,  and  revoked 
so  much  of  her  will  as  related  to  the  bequest  to  her  son  C.  of  a 
share  of  her  plate,  linen,  household  goods,  and  other  effects  (money 
excepted,)  and  gave  the  whole  thereof  to  her  daughter.  A*  died, 
leaving  her  daughter  and  two  sons,  her  only  children ;  and  at  her 
death,  and  also  at  the  date  of  her  will,  she  was  possessed  of  a  lease- 
hold house,  and  of  several  sums  of  .money  in  three  per  .cent  consols, 
four  per  cents,  and  imperial  annuities ;  also  of  money  at  her  banker's, 
a  debt  secured  on  a  promissory  note,  plate,  jewels,  and  trinkets, 
household  furniture,  wearing  apparel,  books,  a  carriage,  wines,  and 
ready  money.  The  question  was,  whether  the  daughter  was  enti- 
tled under  the  will  and  codicil  to  all  the  residuary  personal  estate 
except  money,  which  depended  upon  the  words,  "  other  effects,"  in 
regard  to  the  share  of  C.  revoked  by  the  codicil  and  given  to  D.; 
for  if  the  words,  "  other  effects"  in  the  codicil  were  to  be  restrained 
as  usual  to  property  ejusdem  generis,  with  the  particular  species  de- 
scribed by  the  words  preceding  them,  then  C.  would  be  entitled  by 
the  will  to  a  share  of  all  the  residue,  not  consisting  of  plate,  linen, 
and  household  goods.  Lord  Eldon,  in  deciding  the  question,  ex- 
pressed himself  to  the  following  effect : — "  Tlie  doctrine  appears 
now  to  be  settled,  that  the  words  'other  effects,'  in  general  mean 
effects  ejusdem  generis.(g]  I  cannot  help  entertaining  a  strong 
doubt  whether  this  testatrix,  if  asked  whether  she  meant  effects  ejus- 
dem generis,  or  contemplated  the  share  of 'all  which  she  had  con- 
sidered rrer  effects  in  the  will,  would  not  have  answered  that  the 
latter  was  .  her  meaning.  Her  expression  is  conclusive  upon  that. 
Money  cannot  be  represented  as  ejusdem  generis  with  plate,  linen, 
and  household  goods.  The  express  exception  of  money  out  of  the 
other  effects  shows  her  understanding,  that  it  would  have  passed 
by  those  words,  that  express  words  were  required  to  exclude  it ; 
and  by  force  of  that  exclusion  in  the  excepted  article,  she  says  she 
thought  the  words  of  her  bequest  would  carry  things  non  ejusdem 
generis.  This  disposition  must  therefore  be  taken  to  comprehend  all 
that  she  has  not  excluded,  which  is  money  only." 

His  Lordship  determined  that  the  residuary  clause  in  the  will  was 

(0  Sufira,  p.  196.     (/)  15  Ves.  319.     (g)  Raiolings  v.  Jennings,  13  Ves.  39-46. 


SECT.  I.]  under  the  Words  of  the  Will.  203 

defeated  by  the  codicil  in  every  respect,  except  as  to  money,  and  that 
no  part  of  the  testatrix's  stocks  were  excepted  by  the  legal  effect  of 
the  word  money.  We  shaH  next  proceed  to  consider, — 

4.  What  will  pass  to  specific  legatees  by  the  words  "  household 
furniture." 

By  the*term  "  household  furniture,"  all  personal  chattels  will  be 
included  that  may  contribute  to  the  use  or  convenience  of  the  house- 
holder, or  the  ornament  of  the  house,  as  plate,  linen,  china,  both 
useful  and  ornamental,  and  pictures.  To  that  effect,  the  Master  of 
the  Rolls  expressed  himself,  and  determined  in  the  case  of  Kelly  v. 
Powlet.(h]  But  for  the  same  reason  that  under  the  words  "  house- 
hold goods,"  it  was  determined  (as  has  been  shown)  that  goods  or 
plate  in  the  possession  of  a  testator  in  the  way  of  his  trade  would 
not  be  comprehended,(i)  it  is  settled  that  such  plate,  goods  or  furni- 
ture will  not  pass  to  the  specific  legatee  by  the  description  of  "  house- 
hold furniture."  And  it  would  seem  that  exception  must  also  be 
made  of  such  articles  as  are  fixed  to  the  building,  and  therefore  pass 
as  parts  of  the  house. (A;) 

In  Le  Farrant  v.  Spencer,(l)  B.,  a  captain  of  an  East  India  ship, 
bequeathed  to  C.  and  D.  1000Z.  each,  payable  at  twenty-one  or  mar- 
riage :  and  he  gave  TO  them '"all  his  household  furniture,"  linen, 
plate,  and  apparel  whatsoever,  and  disposed  of  his  residuary  estate. 
The  question  was,  whether  the  words  "  household  furniture,"  &c. 
should  include  all  plate,  India  and  dimity  goods,  and  some  rough 
diamonds  "?  Lord  Hardwicke  directed  the  Master  to  distinguish 
what  goods  the  testator  had  for  his  own  domestic  use,  and  what  for 
trade  or  merchandize :  without  which  knowledge  his  Lordship  said 
it  was  impossible  to  determine  the  extent  of  the  bequest,  which  only 
included  the  former,  according  to  the  opinion  of  the  House  of  Lords, 
in  Pratt  v.  Jackson  ;(ra)  which  degree  was  the  stronger,  because  of 
the  words  "  household  stuff;"  as  also  because  it  was  a  construction 
to  be  made  of  marriage  articles,  where  the  wife  was  a  purchaser 
of  what  she  was  to  claim  ;  but  that  here  the  claim  was  merely  vo- 
luntary. 

Exceptions  out  of  the  words  "  household  furniture"  are  libraries 
of  books,  whether  great  or  small  collections  ;  because  books  being 
more  collected  for  the  improvement  and  entertainment  of  the  mind 
than  for  ornament  as  furniture,  are  presumed  not  to  have  been  in- 
tended to  pass  by  the  description  of  household  furniture.  Wines, 
too,  are  not  included  under  such  description,  not  falling  within  the 
natural  meaning  and  usual  acceptation  of  the  words  "  household  fur- 
niture," as  also  because  their  use  being  in  their  consumption  it  is 
inferred  that  testators  never  meant  to  comprehend  such  and  the  like 
articles  in  the  term  household  furniture ;  the  same  rule  of  decision 
prevailing  in  this  instance  as  we  have  seen  adopted  in  the  construc- 
tion of  the  words  "  household  goods. "(w)  These  remarks  are  sup- 
ported by  the  following  authorities : 

In  Bridgman  v.  Dove(o)  A.  bequeathed  in  these  words:  "I  leave 

(A)  Ambl.  605.    See  also,  1  Sim.  &Stu.  189.     Cole  v.  Fitzgerald,  infra,  p.  206. 
(i)  See  sufira,  p.  191.  (fc)  See  supra,  p.  195. 

(I)  1  Ves.  sen.  97.  and  see  Ambl.  611.     3  Ves.  313.     (m)  Stated  sufira,  p.  192. 
(n)  See  sufira,  p.  192.  (o)  3  Atk.  201. 


* 


204  Rights  of  Specific  Legatees,  [Cn.  IV. 

mv  jewels,  plate,  pictures,  medal s,  furniture,  to  my  executors,  to  be 
equalty  divided ;  who  insisted  that  under  the  word  "  furniture," 
books  would  pass.  But  Lord  Hardwicke  was  of  a  contrary  opinion, 
observing,  that  the  consideration  of  the  library  being  a  small  one, 
;>n<!  therefore  should  pass  as  furniture,  had  no  influence  ypon  his 
mind,  since  great  libraries  were  most  frequently  placed  as  ofnaments, 
and  were  less  accurately  chosen  than  small  ones, 

,'u'//V  v.  Powlet,(p)  the  case  next  stated,  is  one  of  frequent  refe- 
rence upon  the  present  subject.  It  is  a  decision  that  by  the  words 
"  household  furniture,"  plate,  linen,  and  china,  both  useful  and  or- 
namental, will  pass  to  the  specific  legatee,  but  not  a  library  of 
books.  •  It  is  also  an  authority  that  all  plate  belonging  to  the  testa- 
tor, (not  purchased  in  the  way  of  trade)  suitable  to  his  condition  in 
life,  will  pass  as  household  furniture,  whether  it  had  been  used  by 
him  or  not. 

In  Kelly  v.  Powlet,  B.  devised  to  D.  her  "  household  furniture" 
and  farming  utensils,  which  should  be  within  or  upon  her  house, 
lands  and  premises  at  C.  at  her  decease ;  and  she  gave  her  residua- 
ry estate  to  E.,  whom  she  made  executor.  B.  died  possessed  of 
plate  of  the  value  of  '1600Z.  and  of  useful  and  ornamental  china, 
books,  pictures  and  linen,  all  of  which  were  in  her  house  at  C.  and 
and  were  possessed  by  D.,  who  claimed -them  under  the  above  lega- 
tory  words ;  but  the  only  questions  decided  related  to  the  plate, 
books,  linen,  and  china.  It  was  in  evidence,  adduced  by  D.,  that  all 
the  linen  in  the  house  .(except  a  parcel)  were  in  common  use,  and 
not  more  than  sufficient  for  the  family.  That  such  parts  of  the  chi- 
na as  were  useful  had  been  in  common  use,  and  that  the  ornamental 
parts  of  it  were  placed  over  chimnies,  doors,  and  upon  cabinets,  and 
that  the  whole  was  not  of  considerable  value.  It  was  also  proved 
that  a  room  had  been  converted  into  a  library,  in  which  was  a  num- 
ber of  books,  though  not  valuable,  as  it  was  said  they  principally 
consisted  of  novels,  &c.  The  Master  of  the  Rolls,  after  observing 
that  the  principal  question  related  to  the  plate,  expressed  his  opinion 
that  it  passed  by  the  words  "  household  furniture."  He  said  he 
knew  not  any  case  determined  on  those  words  only ;  that  there  were 
always  other  circumstances  considered,  and  which  might  be  so  varn 
ous  as  to  occasion  different,  and  even  contradictory  determinations, 
viz.  that  in  one  case,  "  household  furniture"  might  pass  plate,  and 
that  in  another  it  might  be  excluded.  With  respect  to  the  necessi- 
ty of  the  plate  being  in  use  in  the  family,  his  Honour  thus  expressed 
himself:  "The  rank  and  quality  of  the  person  possessing  it  will  oc- 
casion the  determination  one  way.  If  a  person  of  rank  buy  a  ser- 
vice of  plate  suitable  to  his  quality,  and  never  use  it,  yet  I  think  the 
plate  would  pass  by  the  words  'household',  furniture.'  I  cannot 
agree  it  is  a  rule  that  plate  will  not  pass  unless  used  as  such  by  the 
testator.  There  is  no  such  general  rule.  The  question  always  de- 
pends upon  circumstances,  and  never  was  determined  by  the  plate 
being  used  or  not.  I  do  not  in  my  opinion  rely  upon  the  circum- 
stance of  the  plate  being  in  common,  use.  JS.'s  keeping  her  cham- 
ber, and  not  using  the  plate  during  that  period,  would  not  be  an  ex- 
emption, nor  would  any  other  occasional  non-user.  To  make  non~ 

(/z)  Ambl.  605.  and  approved  of  in  the  next  case. 


SECT.  I.]  under  the  Words  of  the  Will.  205 

user  an  exemption  must  be  a  case  like  that  of  Le  Farrant  v.  Spen- 
cer,(q)  where  the  testator  bought  the  plate  to  trade  with."  As  to 
the  books,  his  Honour  said  he  was  not  satisfied  that  B.  did  not  in- 
tend every  thing  within  the  house  should  pass ;  but  as  the  resolu- 
tion of  the  Court  had  been,  that  books  did  not  pass  by  the  words 
"  household  furniture,"  he  must  determine  so  in  this  case.  And  he 
further  declared,  that  the  linen  and  the  china,  both  useful  and  orna- 
mental, belonged  to  D.  as  also  the  pictures  hung  up(r)  and  in  cases, 
in  pursuance  of  lE.'s  admission. 

The  last  case  was  followed  by  Porter  v.  Tournay,(s)  in  which  it 
was  determined  that  wines  as  well  as  books  did  not  pass  by  the  words 
"  household  furniture." 

In  that  case,  C,  bequeathed  in  the  following  manner  :  "  D.  to  have 
the  use  of  the  house  I  now  live  in,  with  alt  the  furniture  and  stock  of 
carriages  and  horses,  and  other  live  and  dead  stock,  during  her  life, 
and  200Z.  a  year  out  of  the  residue  of  my  fortune."  The  question 
was,  whether  D.  was  entitled  to  any,  and  what  interest  in  C.'s  books, 
and  his  stock  of  wines?  And  Lord  Alvanley,  M.  R.  decided  that 
D.  had  no  interest  in  either  of  them,  and  observed  that  this  not  be- 
ing an  absolute,  but  a  limited  interest  in  the  articles,  viz.  to  D.  for 
life,  it  was  naturally  to  be  supposed  that  such  of  them  as  are  consu- 
med in  their  use,  were  not  intended  to  be  included,  and  that  words 
are  not  to  be  extended  to  such  articles,  unless  they  clearly  embra- 
ced them.  His  Honour  referred  to,  and  approved  of  the  last  case, 
and  declared-  that  D.  was  not  entitled  to,  or  to  the  use  of  the  books 
and  wine. 

In  the  above  case,  C.  was  possessed  of  plate,  in  respect  of  which 
there  was  no  question,  as  the  residuary  legatee  of  C.  yielded  the 
point  in  favour  of  D.  upon  the  authority  of  Kelly  v.  Powlet.  Yet, 
although  in  general  plate,  as  we  have  seen,  will  pass  under  the  words 
"  household  furniture,"  still  the  particular  circumstances  of  a  case 
may,  by  abridging  the  natural  import  of  the  expression,  prevent  it 
extending  to  plate.  This  has  happened-when  a  testator  bequeathed 
part  of  his  plate  by  that  term,  from  which  it  was  inferred,  that  such 
a  legacy  afforded  sufficient  evidence  of  intention  that  he  did  not 
mean  to  pass  any  of  that  species  of  his  property  by  the  description 
of  "  household  furniture."  The  principle  is  that  before  mention- 
ed,^) which  produced  the  decisions  that  the  bequest  of  a  money  le- 
gacy to  the  specific  legatee  "  of  all  the  testator's  goods  in  his  house," 
should  prevent  that  word  passing  ready  money  there,  which  it  would 
otherwise  have  done. 

Thus  in  Franklyn  v.  The  Earl  of  Burlington,(u)  D.  bequeathed 
to  the  following  effect:  "My  will  and  pleasure  are,  that  the  furni- 
ture and  pictures  in  my  houses,  B.,  C.  and  E.  shall  always  remain 
there,  and  not  in  the  power  of  my  executors  to  dispose  of,  but  shall 
go  with  my  said  houses  to  such  of  my  grand-children  as  shall  be  in 
the  possession  thereof."  D.  then  directed  that  the  plate  gilt  with 
gold,  belonging  to  his  chapel  at  F.  together  with  the  ornaments, 
should  remain  to  the  perpetual  use  of  the  chapel ;  and  he  appoint- 
ed G.  executor,  to  whom  he  bequeathed  all  his  personal  estate  not 

($0  See  supra,  p.  200.  (r)  See  2  Ves.  sen.  279.  («)  3  Ves.  311. 

(/)  Sees«Ara,  p.  198.  («)  Pjre.  Ch.  251. 


206  Rights  of  Specific  Legatees,  [Cn.  IV. 

before  given.  The  question  was,  whether  the  plate  which  D.  con- 
-t;uitly  used,  and  which  he  took  with  him  upon  removal  from  one 
house  to  another,  belonged  to  the  residuary  legatee,  or  passed  under 
(lie  word  "  furniture"  to  the  owners  of  the  three  houses  9  And  it 
uas  th<  I, ord  Keeper's  opinion,  that  although  that  word  would  em- 
brace plate,  yet  it  would  not  do  so  in  the  present  case,  not  only  be- 
cause D.  distinguished  the  chapel  plate  from  the  furniture,  but  also 
because  the  testator  expressed  his  intention  that  the  particular  furni- 
ture of  each  house  should  go  and  be  enjoyed  with  the  house  to  which 
it  belonged,  and  that  therefore  the  plate  removed  at  different  times 
from  one  to  another  with  D.  could  not  with  propriety  be  said  to  be 
the  furniture  of  one  house  more  than  that  of-  the  other,  so  that  the 
plate  could  not  be  within  D.'s  contemplation,  when  he  used  the  word 
"  furniture."  The  plate  was  accordingly  adjudged  to  the  residuary 
legatee  and  executor.  Such,  in  substance,  appear  to  have  been  the 
reasons  of  his  Lordship's  decree,  and  they  seem  sufficient  to  have 
authorized  it ;  so  that  the  accuracy  of  this  case,  very  briefly  report- 
ed by  Mr.  Vernon,  who  ascribes  to  the  Court  a  contrary  judgment, 
may  be  reasonably  doubted. (a:) 

With  respect  to  the  words  "  household  stuff,"  every  thing  will  pass 
by  them  to  the  specific  legatee,  which  may  be  used  for  the  conve- 
niency  of  the  house,  as  tables,  chairs,  bedding  and  the  like  ;(y)  but 
apparel,  books,  cattle,  victuals,  chases  in  action,  &c.  which  do  not 
naturally  fall  within  the  import  of  the  term,  will  not  be  included  in 
or  pass  by  that  description,  except  the  context  of  the  will  clearly 
show  a  contrary  intention,  of  which  an  instance  occurred  in  the  case 
of  Hotham  v.  Sutton,  "before  stated. (z) 

In  the  case  of  Cote  v.  Fitzgerald, (a)  Sir  John  Leach,  V.  C.  deci- 
ded, that  the  words  "  household  furniture  and  other  household  effects, 
of  or  belonging  to  the  testator's  dwelling-house  and  premises  at  his 
decease,"  comprised  all  property  in  the  house  or  on  the  premises 
intended  for  use  or  consumption  therein,  or  for  ornament  thereof; 
and  that  it  included  pistols;  apparatus  for  turning,  models,  pictures, 
organ,  parrot,  books,  wine  and  liquors ;  but  not  a  poney,  cow,  or 
fowling-pieces,  unless  it  was  proved  they  were  kept  for  the  defence 
of  the  house.  If  the  hay  stack  was  only  for  use,  it  would  pass,  if 
for  sale,  it  would  not. 

As  to  "  chattels,"  the  word,  according  to  Sir  Edward  Coke,(b)  is 
of  French  extraction,  and  signifies  goods;  but  Blackstone,  in  his 
Commentaries,(c)  prefers  the  derivation  of  the  term  from  the  techni- 
cal Latin  \vord.catalla,  which  primarily  signifies  beasts  of  husband- 
ry or  cattle  only  ;  but  its  secondary  sense  was  applied  to  all  movea- 
bles  generally.  He  also  observes,  that  in  the  grand  Coustumier  of 
Normandy,(d)  a  chattel  is  described  to  be  a  mere  moveable,  but  at 
the  same  time  is  set  in  opposition  to  a  fief  or  feud,  so  that  it  com- 
prised not  only  goods,  but  whatever  was  not  a  feud.(e)  Now,  a  fief 
or  feud  possesses  two  requisites,  viz.  immobility  and  unlimited  or 
uncertain  duration  as  to  time;  whence  it  follows,  that  whatever 
species  of  property  wanted  either  of  those  qualities,  was  not  a  feud 

(x)  2  Venn.  512-  (y)  Swinb.  pt.  7..  sect.  10.  p.  484. 

(z)  Seesw/jra,  p.  202.  (a)  1  Sim.  &Stu.  189. 

(A)  1  Inst.  118,  b.   .     .  (c)  Vol.  II.  385.         (rf)  Chap.  87.         (e)  Fol.  107.  a. 


SECT.  I.]  under  the  Words  of  the  Will.  207 

or  fief,  and  according  to  us  is  not  real  estate ;  for  our  law  has  annex- 
ed the  same  extensive  meaning  to  the  word  chattels  as  the  Norman 
law  has  done ;  so  that  whatever  property  does  not  fall  within  the  de- 
scription of  fief  or  real  estate,  must  be  either  personal  estate  or  chat- 
tels. From  the  above  definition  of  the  term  "  chattels,"  it  naturally 
occurs  that  the  division  must  be  two-fold,  viz.  into  chattels  real  and 
chattels  personal.(f).  The  former  are  such  interests  created  in  lands, 
which  want  the  unlimited  or  uncertain  duration  before  mentioned,  as 
terms  for  years,  estates  by  statute  merchants,  &,c.  The  latter  con- 
sist of  mere  moveable  property,  as  goods,  money,  and  the  like. 
Hence  we  may  infer,  that  a  bequest  of  all  the  testator's  chattels  in 
the  parish  of  A.  will  be  competent  to  pass  not  only  his  moveable  or 
personal  property,  except  choses  in  action,  but  also  such  interests  in 
lands,  less  than  freehold,  to  which  he  maybe  entitled  in  that  place. (g) 
This  word,  however,  must  be  construed  by  the  context  of  the  will, 
so  that  if  the  bequest  be  of  chattels,  or  goods  and  chattels  in  the  tes- 
tator's house,  the  word  "  chattels"  will  only  pass  such  articles  and 
property  as  belong  to  the .  house  and  are  detached  from  it,  and  in 
possession  and  not  in  action,  and  will  receive  the  like  construction  as 
the  word  "goods,"  which  has  been  before  discussed. (h] 

We  shall  next  consider  the  import  of  the  expressions  "  Live  and 
dead  stock." 

The  words  "live  and  dead  stock"  have  never  occurred  alone  in  a 
bequest,  consequently  their  import  in  the  abstract  could  not  have 
received  a  legal  interpretation.  Sincer  however,  the  term  stock  is 
of  extensive  meaning,  and  not  rendered  less  so  by  the  prefatory 
words  "  live  and  dead ;"  expressions  that  merely  distinguish  such 
part  of  the  personal  estate  as  is  inanimate  from  that  which  is  ani- 
mate ;  it  is  not  improbable  that  a  court  might  interpret  the  word 
stock,  under  those  circumstances,  as  synonimous  with  property,  and 
sufficient  to  pass  the  whole  of  a  testator's  personal  estate.  It  is  also 
observable,  that  the  term  stock  accords  with  most  of  the  personalty 
which  a  person  can  die  possessed  of;  as  stock  of.  wine,  of  linen  and 
china,  of  cattle,  corn,  &,c.  Hence  a  rational  inference  arises,  that 
when  a  testator,  in  disposing  of  his  personal  estate,  expresses  him- 
self by  the  only  words  "  all  my  live  and  dead  stock,"  he  used  those 
terms  in  the  sense  of  embracing  the  whole  of  his  personal  property 
not  otherwise  bequeathed. 

But  we  are  supplied  with  a  decision,  that  when  the  words  "  live 
and  dead  stock"  are  preceded  by  others  showing  that  the  testator 
disposed  of  all  the  in-door  property  which  he  intended  to  give  to 
the  legatee,  but  by  the  effect  of  which  words  some  of  the  personal 
estate  in  his  house  would  not  pass,  that  intention  will  prevent  the 
subsequent  expressions  "  live  and  dead  stock"  applying  to  the 
property  within  doors,  so  as  to  include  such  part  of  it  as  did  not  pass 
by  the  preceding  words ;  and  will  confine  those  expressions  to  per- 
sonal property  out  of  doors,  upon  the  same  reasoning  (as  before  ap- 
pears,)^) that  a  money  legacy  to  B.  who  is  also  specific  legatee  of 
the  testator's  household  estate  by  the  words  "  all  the  goods  in  my 
house  at  A."  will  exclude  B.  from  taking  ready  money,'  under  the 

(/)  1  Inst.  118.  (e-)  Swinb.  pt.  7.  sect,  10.  p.  475. 

(A)  See  sujira,  p.  .  189  et  seq.  (t)  See  suflra,  p.  199. 


208  Rights  of  Specific  Legatees,  [Cn.  IV. 

description  of  "  goods,"  which  might  be  found  there  at  the  testa- 
tor's death. 

The  case  alluded  to  is  Porter  v.  Tournay.(k)  The  words  of  the 
bequest  were,  "  The  aforesaid  D.  to  have  the  use  of  the  house  I  now 
live  in,  with  all  the  furniture  and  stock  of  carriages  and  horses  and 
other  live  and  dead  stock""  during  her  life.  The  question  was, 
wlu-ther  under  any  of  those.words  D.  was  entitled  to  the  testator's 
books  and  his  stock  of  wine's,  valued  at  150Z.1?  It  has  been  shown, 
that  the  word  furniture  would  pass  neither  of  these  kinds  of  per- 
sonalty^/) In  consequence  it  became  necessary  to  consider  whether 
the  terms  "  live  and  dead  stock"  would  have  that  effect.  And  Lord 
Alvanley,  M.  R.  thus  expressed  himself:  "The  whole  is  qualified. 
I  do  not  mean  to  say  what  live  -and  dead  stock  might  mean  if  the 
words  stood  independent  of  every  'thing  else ;  but  upon  the  whole  of 
this  will,  I  cannot,  by  any  fair  inference,  deduce  that  the  testator  did 
intend,  under  the  words  live  and  dead  stock,  as  they  stand  here, 
his  books  and  wine.  Consider  what  would  have  been  the  interpre- 
tation of  these  words  if  nothing  at  all  were  said  of  furniture.  No 
person  could  haye  conceived  that  those  expressions,  preceded  by 
carriages  and  horses,  would  have  meant  in-door  stock,  furniture,  &c. 
which,  though  dead,  could  not  be  coupled  and  enjoyed  with  car- 
riages and  horses.  It  is  clear,  therefore,  that  if  those  words  stood 
alone,  the  interpretation  would  be  out-of-door  stock.  They  would 
mean  corn,  hay,  straw,  carts,  &c."  His-  Honour  determined  that  the 
books  and  wine  did  not  pass,  observing  that  by  the  word  furniture, 
the  testator  disposed  of  every  thing  he  intended  in  the  house,  and 
that  by  the  other  words  he  only  meant  out-of-door  stock. 

But  it  may  be  deduced  from-  the  judgment  in  the  last  case,  that 
the  intention  inferred  from  the  words  accompanying  "  live  and  dead 
stock"  would  have  been  repelled,  and  that  the  books  and  wine 
would  have  passed  if  the  testator  had  added  to  those  expressions  the 
words  "  in-door  and  out ;"  for  then  his  meaning  to  dispose  of  every 
thing,  both  within^  and  out  of  doors,  would  have  clearly  appeared, 
as  in  the  case  of  Gower  v.  Gower(m)  as  before  stated. (M) 

In  a  recent  case  a  question  arose  as  to  the  passing  of  "  live  stock" 
under  one  of  two  clauses  in  a  wilL  The  case  was  Randall  v.  Rus- 
sell,(o)  in  which  Jl.  by  the  first  clause  bequeathed  all  his  household 
furniture,  goods,  plate,  linen,  china,  books,  pictures,  implements  and 
utensils  of  household,  and  all  such  wines,  liquors  and  provisions  as 
should  be  in  and  about  his  house  at  his  death,  and  also  all  his  stock 
of  cattle,  horses  and  carriages,  and  also  the  harness,  furniture  and 
trappings  thereto  belonging,  to  B.  absolutely.  And  by  the  second 
clause,  which  immediately  followed,  A.  gave  all  his  messuage  or 
tenement,  with  the  farm  and  lands  (and  stock  and  crop  thereon) 
called  L.  &c.  to  the  said  B.  durante  viduitate.  The  question  was, 
under  which  of  those  clauses  the  live  stock  upon  Jl's  farm  was  com- 
prehended ?  And  Sir  William  Grant,  M.  R.  decided,  that  such  stock 
passed  to  B.  absolutely  under  the  first.  B.'s  opponents  insisted  that 
the  live  stock  used  upon  the  farm  did  not  pass  to  her  absolutely  un- 
der the  words  "  stock-of  cattle  and  horses,"  but  only  for  life  under 

a)  3  Ves.  31 1 .  stated  sufira,  p.  205.     [/)  Ante,  p.  205, 

(m)  Artibl.  612.  (n)  See  supra,  p.  195.  (0)  3  Meriv.  190. 


SECT.  I.]  under  the  Words  of  the  Will.  209 

the  word  stock  in  the  second  clause.  That,  said  his  Honour,  was  a 
strong  proposition,  for  it  was  asserting,  that  by  tire  words  "  stock 
on  the  farm,"  cattle  and  horses  were  more  properly  designated 
than  by  the  very  words  cattle  and.  horses.  .That  if  Jl.  had 
spoken  of  horses  only  in  conjunction  with  carriages,  he  might  have 
been  supposed  to  have  meant  carriage  horses  and  not  farm  horses ; 
but  that  he  gave  not  merely  his  cattle  and  horses,  but  all .  his  stock 
of  cattle  and  horses ;  unless,  therefore,  it  could  be  contended  that 
wi.'s  farm' stock  was  not  his  stock,  or  that  all  his  stock  meant  some- 
thing less  than  his  whole  stock,  his  Honour  said  that  he  could  not- 
see  how  JB.'s  opponents  could  succeed  iri  their  claims. 

In  the  last  case  a  point  arose  as  to  the  nature  of  the  interest  which 
B.  took  as  tenant  for  life,  in  articles  of  which  the  use  consisted  in 
their  consumption.(p)  There  was  no  decision,  but  the  Court  gave 
a  strong  opinion,  that  a  bequest  for  life,  if  specific,  of  things  qua,  ipso 
usu  consumuntuf,  is  a  gift  of  the  property,  and  that  there  cannot  be 
a  limitation  over  after  a  life  interest  in  such  articles,  but  that  the 
old  rule  should  be  revived  of  a  gift  for  life  of  a  chattel  being  ah  ab- 
solute disposition  of  it.  The  point,  however,  still  suspends  in  doubt, 
as  at  the  time  when  Lord  Mvanley  determined  the  preceding  case 
of  Porter  v.  Tournay.  What  the  decision  may  be  when  the  ques- 
tion comes  before  the  Court,  and  is  maturely  considered,  it  would 
be  rash  to  anticipate,  but  these  reflections  occur  upon  considering 
Sir  William  Grant's  opinion  ;  if,  as  admitted,  articles  of  the  above 
description,  when  included  in  a  residuary  bequest,  are  to  be  sold, 
and  the  interest  to  be  enjoyed  by  the  tenant  for  life,  and  the  capital 
to  belong  to  the  person  in  remainder,  in  order  to  effectuate  the  inten- 
tion of  the  testator ;  it  is  difficult  to  assign  a  satisfactory  reason  why 
the  same  method  should  not  be  adopted  when  they  are  specifically 
given  to  a  person  for  life,  antf  afterwards  to  another.  The  intention 
is  the  same  in  both  cases,  viz.  to  divide  the  things  between  the  ten- 
ant for  life  and  the  person  in  remainder ;  and  why  that  intent  should 
be  attended  to  in  the  one  case,  and  not  in  the  other,  does  not  ap- 
pear. The  opinions  therefore,  of  the  learned  Judges  referred  to  by 
Lord  Mvanley  in  the  case  last  mentioned,  that  the  articles  must  be 
sold,  and  the  interest  of  the  money  enjoyed  by  the  tenant  for  life, 
seem  entitled  to  great  consideration  ;  and  although  he  thought  them 
very  rigid,  yet  other  persons  may  consider  the  contrary  construction, 
attended  with  greater  hardship,  as  tending  to  defeat  the  interest  of 
the  person  in  remainder,  and  the  intention  of  the  testator. 

As  to  what  will  pass  by  the  terms  "  stock  upon  a  faring'  it  would 
seem  that  not  only  all  moveable  property  upon  or  belonging  to  the 
farm  will  be  included,  but  crops  of  corn  standing  upon  it  at  the  tes- 
tator's death.  This  was  first  decided  by  Holt,  C.  L  in  Cox  v.  God- 
slave,(q)  in  which  Jl.  bequeathed  to  B.  for  life  the  farm  C.  in  the 
occupation  of  .#.,  with  remainder  to  J.  S.  He  then  gave  to  B.  all  his 
goods  and  chattels,  plate,  and  household  goods,  stock  of  his  farm, 
(including  C.,)  bonds,  bills,  book-debts,  and  all  other  his  moveables 
for  life;  and  appointed  B.  and/),  executors.  B.  survived  the  testa- 
tor, but  afterwards  dying  before  severance  of  the. crops  of  corn  stand- 

(fi)  3  Meriv.  p.  194.  (?)  Cited  6  East.  604.  in  notis. 

VOL.  i.  D  d 


210  Rights  of  Specific  Legatees,  [CH,  IV. 

in»-  and  crowing  upon  the  farm  al  liie  testator's  death  ;  the  question 
\VM<.  ulu'ther  those  crops  belonged  to  J.  S.  the  devisee  of  the  land, 
or  h;nl  become  vested  in  B.  under  the  terms  of  the  bequest  of  stock, 
Ar.  and  consequently  belonged  to  her  personal  representative  9  And 
it  \\ns  determined  in  favour  of  the  representative  of  B.  as  express 
legatee  of  them,  by  the  words  of  the  above  bequest,  although  it 
would  .have  been  otherwise  if  B.'s  title  had.  solely  depended  upon 
her  character  of  executor. 

The  last  case  was  followed  by  that  of  West  v.  Moore,(r)  in  which 
'A.  devised  to  B.  several  estates,  then  in  Jl?s  own  occupation.  He 
afterwards  bequeathed  to  his  executors  all  his  money,  securities  for 
money,  household  goods,  furniture,  plate,  china,  linen,  and  stock  upon 
his  farm,  with  the  implements  of  husbandry,  and  -all  other  his  per- 
sonal estate  of  what  nature  or  kind  soever,  in  trust  to  sell  and  to 
apply  in  payment  of  his  debts,  funeral  and  testamentary  expenses 
and  legacies,  and  to  pay  the  surplus  (if  any)  as  A.  by  codicil  should 
appoint.  At  his  death  there  were  growing  upon  the  estates  devised 
to  B.  several  crops  of  wheat,  oats,  beans,  and  peas.  The  question 
was,  whether  they  passed  tathe  devisee  of  the  lands,  or  to  the  exe- 
cutors under  the  words'  of  the  bequest0?  And  Lord  Ellenborough 
and  the  rest  of  the  Judges  of  the  Court  of  King's  Bench,  decided  that 
the  crops  belonged  to  the  executors  ;  a  decision  founded  upon  the 
authority  of  the  preceding  case  of  Coo>v.  Godslave. 

Although  the  expressions  "stock  upon,  or  belonging  to  my  farm," 
generally  mean  stock  in  husbandry,  they  may  nevertheless  also  ex- 
tend to,  and  pass  stock  of  a  different  description,  when  the  inten- 
tion clearly  appears  that  they  should  do  so  from  the  words  of  the  be^ 
quest,  as  happened  in  the  case  Brooksbank  v.  Wentworth  ;(*)  in 
which  ,i.  bequeathed  to  B.  for  life,  all  his  household  goods,  cattle, 
corn,  hay,  implements  of  husbandry,,  arid  stock  belonging  to  his 
house,  messuage,  farm,  and  premises  ;  and  also  such  messuage,  farm 
and  premises.  Lord  Hardwicke  determined,  that  a  malt  house  being 
included  in  the  lease,  the  stock  in  the  malt  trade  passed  to  B.  ;  for 
his  Lordship  considered  that  as  the  words  of  the  bequest  extended 
to  all  stock  belonging  to  the  house,  farm  and  premises  comprised  in 
the  lease,  the  malt  house  being  so  included,  the  stock  used  in  the 
malt  trade  necessarily,  and  in  unison  with  the  testator's  intention, 
passed  to  B. 

With  respect  to  the  word  "  effects,"  it  is  equivalent  to  "property" 
or  "worldly  substance."  Standing  alone,  therefore,  or  unconnected 
with  particular  species  of  chattels,  it  will  pass  the  whole  of  the  tes- 
tator's personal  estate  ;(£)  but  when  it  is  preceded  and  connected 
with  words  of  narrower  import  and  the  bequest  is  not  residuary, 
it  will  be  confined  to  species  of  property  ejusdem  generis  with  those 
previously  described.  An  instance  of  this  occurred  in  Rowlings  v. 
Jennings,  (u) 

In  that  case  .#.  bequeathed  to  his  wife  B.  an  annuity  of  200Z.  part  of 
money  he  then  had  in  bank  security;  and  thus  proceeded;  "  toge- 


,c  %'    ,  (0  3  Atk-  64-  Ed-  by  Sanders. 

(015  Ves.  507.     Cowp.  304.     6  Mad.  119,  Hearne  v.  WtggintQn,    Henderson 
v.  Farbridge,  1  Russ.  479. 
(u)  13  Ves.  39-46.     See  also  Sutfon  v.  Sharp,  1  Russ.  146. 


SECT.  I.]  under  the  Words  of  the  Will.  211 

ther  with  all  my  household  furniture  and  '  effects'  of  what  nature  or 
kind  soever  that  I  may  be  possessed  of  at  the  time  of  my  decease." 
The  residuary  personal  estate,  being  otherwise  undisposed  of,  was 
claimed  by  B.  under  the  words  "  effects,"  &c.  But  Sir  William 
Grant  determined  that  the  claim  could  not  be  sustained,  observing 
that  as  part  of  the  property  was  particularly  given  to  B.  the  word 
"  effects"  must  receive  a  more  limited  interpretation,  and  must  be 
confined  to'  articles  ejusdem  generis,  with  those  specified  in  the  pre- 
ceding part  of  the  sentence,  viz.  household  furniture. 

But  in  Campbell  v.  Prescott,(x)  the  Court  would  not  confine  the 
import  of  the  word  "  effects"  to  articles  ejusdem  generis  with  those 
preceding  it,  and  for  the  reasons  after  mentioned.  There  the  bequest 
was  of-"  all  the  testator's  sugar-house,  cupola,  and  merchandize, 
stock  with  jewels,  plate,  household  goods,  furniture,  and  all  effects 
whatsoever."  The  next  of  kin  claimed  the  general  residue  as  un- 
disposed of,  there  being  no  other  words  to  comprise  it.  But  the  same 
Judge,  who  decided  the  last  case,  determined,  that  the  surplus  passed 
by  the  word  "  effects." 

It  is  obvious  that  the  terms  of  the  above  bequest  were  residuary, 
and  that  the  testator  meant  to  make  a  general  disposition  of  his  per- 
sonal estate,  in  doing  which,  he,-  (as  is  usual,)  merely  enumerated 
some  of  its  particulars,  concluding  in  the  extensive  language  of  "  all 
his  effects  whatsoever."  There  was  no  reason,  therefore,  in  this,  as 
there  was  in  the  preceding  case,  to  restrain  upon  inference  of  inten- 
tion the  natural  import  of  the  term  "  effects,"  to-  particulars  ejusdem 
generis  with  those  previously  enumerated. 

A  similar  instance  occurred  in  the  case  of  Michell  v.  Micfiell.(y) 
There  the  testator  devised  to  his  two  daughters  a  house  and  pre- 
mises ;  also,  a  garden  and  orchard,  and  "  all  his  plate,  linen,  china, 
household  goods  and  furniture,  and  effects  that  he  should  die  pos- 
sessed of;"  making  no  other  disposition  of  his  general  personal  estate. 
The  Court  held  that  the  word  effects  was  in  a  sense  detached  from 
the. preceding  parts  of  the  sentence,  and  was  used  by  the  testator  to 
include  the  whole  of  his  personal  property.  Or  in  other  words,  the 
testator  adopted  the  term  "  effects"  as  the  most  comprehensive  ex- 
pression he  could  devise  to  include  the  disposition  of  all  his  person- 
al estate. 

As  to  what  will  pass  to  a  specific  legatee  by  the  word  "  utensils," 
it  should  seem  that  the  expression  will  embrace  every  thing  which 
is  necessary  for  household  purposes,  or  applicable  to  the  trade  or 
mystery,  to  which  the  term  has  reference.  In  Dame  Latimer^s  case, 
shortly  reported  in  Dyer,(z)  it  appears  to  have  been  the.  opinion  of 
the  Judges  that  plate  or  jewels  would  not  pass  by  that  general  term. 
The  principle  must  have  been,  that  plate  being  a  luxury,  did  not  fall 
within  the  ordinary  use  and  acceptation  of  the  word  utensils;  a  rea- 
son which  equally  applied  to  jewels,  that  were  ornaments,  and  of 
great  value,  and  more  suitable  to  the  person  and  dress  of  the  inha- 
bitant, than  for  the  necessary  occupation  of  the  dwelling  house.  It 
is,  nevertheless,  presumed,  that  if  a  testator  clearly  showed  an  inten- 
tion to  include  plate  and  jewels  in  the  word  "  utensils,"  they  would 

(jc)  15  Ves.  503-507.  (y)  5  Madcl.  69-71.  (z)  P.  59.  pi.  .15. 


nights  of  Specific  Legatees,  [Cn.  IV. 

Nvit.(f')  Suppose  then  lie  bequeathed  to  B.  "  all  the  utensils  in 
hi*  bouse,  «W»p<  hi*  silver  tankard  and  his  diamond  ring."  By  the 
exception,  it  manifestly  appears  that  he  meant  to  give  such  of  the 
same  kinds  of  property  in  the  house  as  were  not  excepted,  so  that  it 
is  conceived  upon  the  principle  ofHotham  v.  Sutton,(aa)  that  all  the 
other  plate  and  jewels  would  pass  to  B. 

The  term  "  money"  will  include  bank  notes,  (which  are  consider- 
ed money,)  ready  money,  and  probably  notes  payable  to  bearer,  and 
Exchequer  bills  and  bills  <5f  exchange,  indorsed  in  blank,  for  the 
reasens  before  stated,(6)  but  not  choses  in  action,  as  bonds,  &c.  or 
receipt  for  government  stocks.  Accordingly,  in  a  bequest  of  all  the 
testator's  money  in  his  house  at  A.,  bank  notes  and  ready  money  will 
alone  pass,  although  he  may  leave  in  it  mortgages,  bonds,  or  receipts, 
for  government  annuities. (c)  Nevertheless,  .if  it  appear  from  the 
context  of  the  will,  that  the  testator  intended  by  the  word  "  money," 
to  include  securities  for  money,  it  is  presumed,  for  the  reason  stated 
in  considering  the  import  of  the  word  "  utensils,"  that  such  inten- 
tion will  prevail,  and  the  securities  pass  accordingly. 

Public  stocks  or  funds  will,  it  shduld  seem,  from  the  case  of  Bes- 
coby  v.Pack,(d)  pass  by  the  words  "securities  for  money;"  but  it 
appears  doubtful  whether  they  would  include  bank  stock,  that  being 
property  wherein  the  owner  is  interested  as  a  partner  in  a  public 
trading  company. 

The  case  of  Dicks  v.  Lambert,(e)  was  cited  in  Bescoby  v.  Pack, 
but  seems  not  to  have  removed  the  doubt  upon  the  mind  of  Sir  John 
Leach,  V.  C.  In  that  case  the  testator  bequeathed  to  his  nephews 
and  nieces,  who  should  be  living  at  his  wife's  death,  50/.  a  piece  out 
of  the  securities  he  then  had  by  him.  At  his  death  the  testator  was 
only  possessed  of  3SOOZ.  four  per  cent  bank  annuities,  a  mortgage 
for  140/.  and  20Z.  upon  bond,  which  could  be  called  securities:  the 
mortgage  and  bond  being  insufficient  to  pay  all  the  legacies,  Lord 
Loughborough  held  that  under  the  word  "  securities"  the  testator 
had  included  the  bank  annuities. 

And  as  to  "  medals,"  what  will  pass  by  the  word  to  a  specific  lega- 
tee, besides  pieces  of  metal  answering  the  literal  description,  it  should 
seem  that  if  current  coin  be  curious  pieces,  and  are  usually  kept 
with  medals,  the  coin  will  pass  with  them  under  the  description  of 
medals,  since  medals,  or  at  least  some  of  them,  were  once  current 
coin ;  and  to  that  effect  Lord  Hardwicke  expressed  himself  in  the 
case  ofBridgman  v.Dove.(f) 

By  the  word  "  debts,"  whatever  property  falls  within  the  description 
of  a  debt,  will  pass  to  the  legatee ;  as  money  owing  to  the  testator 
on  bonds,  notes,  mortgages,  &c.  The  time  to  which  the  legacy 
refers  is  material,  for  if  the  bequest  be  of  "  debts  due  and  owing  at 
the  testator's  death,"  the  obligations  then  due,  and  answering  the 
description  of  debts,  will  pass;  and  the  interest  of  the  legatee  can- 
not be  disappointed  in  any  of  them,  by  a  subsequent  act  of  a  debtor, 
under  his  engagement  to  perform  a  particular  duty.  In  illustration 

(?)  JSuhr?aldK>\field'  l  RUSS'  42?'          (QC)  15  VeS<  319<  Stated  ante>  p-  2°2' 

W  Suflra,p.. 190,  etseg.  and  see  Downing  v.  Townsend,  Ambl.  280. 

(rf)  1  bim.  &  Stu.  500.     (0  4  Ves.  725;    f/)  3  Atk.  202.  stated  supra,  p.  203. 


SECT.  I.J  under  the  Words  of  the  Will.  213 

of  this  :  If  A.  bequeathed  all  his  ready  money  and  debts  due  and 
owing  to  hini  at  his  death  to  B.  and  he  afterwards  lent  to  C.  3500L 
navy  five  per  cents  upon  security  of  his  bond,  to  replace  the  stock 
on  a  particular  day,  and  to  pay  the  intermediate  dividends.  If  the 
bond  were  forfeited  during  vi.'s  life,  and  he  died  before  the  stock 
was  replaced,  B.  would  be  entitled  to  the  benefit  of  the  bond ;  be- 
cause, by  the  forfeiture  of  the  condition,  a  debt  became  due  from 
C.  to  A.  which  was  owing  at  ASs  death  ;  and  the  circumstance  that 
C.  might  still  transfer  the  stock,  could  not  alter  or  affect  the  rights 
of  the  parties.  So  it  was  determined  by  Sir  William  Grant,  M.  R. 
in  the  case  of  Essingtonv.  Vashon;(g)  from  whose  judgment  this 
inference  arises,  that. sums  of  money  only,  which  are  actually  due 
and  payable  at  the  testator's  death,  fall  within  the  description  of 
debts  due  and  owing  to  him  at  that  period ;  so  that  if  the  condition 
of  a  bond  or  mortgage  were  not  broken  during  the  life  of  the  testa- 
tor, the  hioney  secured  by  either,  would  not  pass,  as  not  answering 
the  description  of  a  debt  due  to  him  at  his  decease. 

The  word  "  debts"  may  be  confined  to  particulars  when  the  inten- 
tion is  sufficiently  apparent  from  the  will,  to  give  pnly  sums  of  mo- 
ney owing  upon  particular  securities ;  as  in  the  instance  of  a  gift 
"  of  the  debts  owing  by  B.  to  the  testator  at  his  death,  viz.  such  as 
shall  be  due  on  bond  or.  mortgage  ;"  for  the  viz.  clearly  shows  the 
qualified  sense  in  which  the  general  words  were  used. 

But  in  the  case  next  stated,  Lord  Eldon  expressed  a  decided  opin- 
ion, that  if  a  bequest  were  of  "  the  debts  due  at  the  testator's  death 
from  C.  whether  by  bonds  or  mortgages,  or  open  accounts,"  debts 
only  so  secured-  would  pass  to  the  legatee, (h)  although  the  form  of 
bequest  does  not  seem  inconsistent  with  the  intent  to  give  all  the 
debts  by  the  general  words,  as  in  the  instance  before  given,  since  the 
enumeration  might  be  made-ea;  abunddnti  canteld.(i)  Yet,  suppos- 
ing that  opinion  on  such  a  case  to  be  correct,  if,  from  other  parts 
of  the  will,  a  clear  intention  appears,  that  notwithstanding  the  enu- 
meration of  the  particular  securities,  the  testator  meant  to  give  all 
debts  of  every  kind  and  description  which  C.  should  owe  him  at  his 
death,  then  full  effect  will  be  given  to  the  word  "  debts,"  and  the 
legatee  will  be  entitled  to  whatever  sums  of  money,  falling  within 
the  description,  were  due  from  C.  to  the  testator  at  the  death  of 
the  latter.  .  .  . 

An  instance  of  this  occurred  in  Stenhousev.  Mitchell,(k)  where 
A.  by  the  tenth  clause  of  his  will,  bequeathed  to  B.  all  the  debt 
which  should  be  owing  to  A.  from  C.  of  Bellfield  estate,  on  the  1st 
day  of  January  1 794,  whether  by  bond,  mortgage,  or  open  account, 
charged  with  the  payment  of  100Z.  a. piece  yearly,  to  D.  and  jE.  if 
such  debt  did  not .  exceed  8000/.  or  that  D.  and  E.  should  have  a 
quarter  of  the  interest  on  whatever  sum  might  be  due  by  Bellfield 
estate.  By  the  eleventh  clause  A.  gave  to  his  six  nephews  the  debts 
which  should  be  due  to  him  at  his  death,  whether  by  mortgages, 
bonds,  or  open  accounts,  by  J.  and  other  persons,  owners  of  certain 
specified  lands,  subject  to  the  payment  of  legal  interest  on  the  sums 
owing  by  those  estates.  And  by  a  subsequent  claused,  gave  all  the 

(g)  3  Meriv.  434.  (A)  11  Ves.  356. 

(0  See  observations,  infra,  (k)  11  Ves,  353. 


214  Rights  of  Specific  Legatees,  [Cii.  IV. 

debt  which  should  be  owing  from  the  said  C.  of  Bellfieldesiate,  on  the 
1st  day  of  January  1796,  instead  of  the  1st  of  January  1794,  to  the 
said  B.  to  whom  he  mentioned  that  debt  was  .given  on  B.'s  paying 
to  D.  and  E.  a  fourth  part  of  the  legal  interest  of  the  sum  such  debt 
iniuht  happen  to  be  at  A. '«  death-  The  question  was,  whether  the 
legatees  under  the  eleventh  clause  were  entitled  to  judgment  debts 
and  other  debts  which  did  not  accord  with  the  terms  of  the  bequest  *? 
And  Lord  Eldon  determined  in  the  affirmative,  observing,  that  upon 
the  subsequent  or  last  clause,  with  reference  to  the  debt  in  the 
tenth  clause,  the  testator  himself  had  said  {in  omitting  the  words, 
"  whether  by  bond,  mortgage,  or  open  account,")  that  when  he  gave 
debts,  whether  due  by  mortgage,  bond,  or  open  account,  speaking 
of  debts  due  6y  estates,  he. meant  all  the  debts  those  persons  whom 
he  named  should  owe  him  at  the  period  to  which  he  referred ; .  in 
that  clause  of  1794  and  1796,  and  in  the  other  at  his  death. 

In  deciding  the  last  case,  Lord  Eldon  thought  it  necessary  to  call 
in  aid  the  context  of  the  will,  and  was  of  opinion  (as  before  appears) 
that  if  the  subsequent  or  third  clause  had  been  omitted,  he  must 
have  determined  .that  the  word  "debts,"  followed  by  the  specifica- 
tion of  the  particular  securities,  was  confined  to  property  actually 
due  upon  mortgages,  bonds,  and  open  accounts.  That  was  how- 
ever only  opinion,  but  it  is  pfesumed  that  the  manner  in  which  the 
specification  was  made, .so  far  from  showing  an  intention  to  restrain 
the  generality  of  the  word  "••  debts,"  seemed  to  have  been  inserted 
from  an  anxiety  to  include  every  debt  that  might  be  owing  from  the 
debtors.  His  Lordship's  opinion  therefore,  might  be  doubted  upon 
principle,  in  the  absence  of  authorities  to.  the  contrary ;  but  when 
the  case  of  Bridges  v.  Bridges,(l)  and  Chalmers  v.  !Storil,(m)  are 
considered,  it  will  appear  difficult  to  support  that  opinion.  In  the 
first  case,  the  testator  gave  the  remainder  of  his  estate,  viz.  his  bank 
stock,  India  stock,  and  south  sea  annuities ;"  Lo*rd  King  held  that  not 
those  particular  funds  only,  but  the  whole  residuary  personal  estate 
passed  ;  the  specification  not  being  added  -in  a  restrictive  sense,  but 
as  an  enumeration  of  the  chief  particulars  of  which  the  estate  con- 
sisted. And  in  the  second  case,  the  testator  gave  all  his  real  and 
personal  estate  to  B.  &c.  and  then  enumerated  the  property  be- 
queathed, as  consisting  of  freehold  ground  rents,  money  on  mort- 
gage, American  bank  stock,  &c.  And  Sir  William  Grant,  M.  R. 
determined  upon  the  authority  of  the  last  case,  and  the  intention  of 
the  testator,  that  the  whole  personal  estate  passed  to  the  legatees. 
So  that  in  the  case  of  Stenhouse  v.  Mitchell,  the  intention  being 
clear,  (as  admitted  by  Lord  Eldon}  to  give  alt  the  debts  which 
should  be  due  from  the  persons  named,  the  principle  of  the  two  last 
stated  cases,  seems  to  apply  to  it,  and  to  have  authorized  a  decision, 
without  the  context  of  the  will,  that  all  those  debts,  however  secur- 
ed or  owing,  passed  to  the  legatees. 

The  bequest  of  a  debt  or  sum  of  money  due  upon  a  particular  se- 
curity, will  pass  the  capital,  and  not  arrears  of  interest  owing  at  the 
testator's  death  ;  for  the  description  merely  embraces  the  principal 
money. 

(/)  8  Vin.  Abr.  tit.  "  Devise,"  295.  pi.  13.     ' 

(mj  2  Ves.  &  Bea.  222.  and  see  Williams  v.  Williams,  stated  infra,  sect.  4. 


SECT.  I.]  under  the  Words  of  the  Will.  215 

This  was  determined  by  Lord  Hardwicke  in  Roberts  v.  Kuffin,(ri) 
where  A.  bequeathed  to  B.  2001.  secured  by  a  mortgage  on  the  es- 
tate of  C.  and  all  the  messuages,  &c.  for  securing  the  same.  His 
Lordship  said  that  the  devise  entitled  B.  to  the  principal  only  of  the 
mortgage,  and  not  to  the  interest  accrued  from  the  date  of  the  will. 
And  he  put  a  case  of  the  bequest  of  3001.  due  upon  a  bond  ;  which, 
said  his  Lordship,  would  not  carry  the  interest  incurred  in  the  life- 
time of  the  testator. 

Since,  then,  a  specific  legacy  of  a  debt  will  not  pass  arrears  of 
interest,  it  is  a  consequence,  that  the  bequest  of  arrears  of  a  debt 
will  not  pass  the  principal-  money,  as  the  term  arrears  is  more  appli- 
cable to  interest  than  capital ;  so  it  was  considered  by  Lord  Ross- 
lyn  in  Hamilton  v.  Lloyd.(o] 

In  that  case  the  testatrix  having  a  mortgage  for  4000Z.  upon  the 
estate , of  B.  who  was  tenant  for  life  ;  and  also  having  his  bond  for 
1201.  arrears  of  interest,  bequeathed  "  to  B.  the  arrears  of  her  mort- 
gage upon  his  estate,  likewise  a  bond  from  him  in  her  possession  to 
be  delivered  to  him."  The  question  was,  whether  the  principal  of 
the  mortgage  was  included  in  and  passed  by  the  above  description? 
And  his  Lordship  decided  in  the  negative,  observing  that  tha  arrears 
of  a  mortgage  did  not  mean  the  mortgage  itself,  but  what  might  be 
due  a't  the  death ;  that  the  words  were  insufficient  to  pass  the  mort- 
gage, and  that  it  was  only  the  testatrix's  intention  to  relieve  B.  from 
his  debt  incurred  for  interest. 

We  shall  now  consider  what  will  .pass  by  the  words  "linen  and 
clothes." 

The  term  "  linen,"  without  qualification,  will  comprise  table  and 
bed  linen,  and  every  article  to  which  that  general  word  can  be  ap- 
plied. But  if  it  be  accompanied  with  the  word  "  clothes,"  a  term 
merely  comprehending  body  linen,  that  kind  of  linen  only  will  pass, 
as  was  decided  in  the  case  of  Hunt  v.  Hort.(p\ 

With  respect  to  the  import  of  the  word  "  farm,"  if  a  testator  spe- 
cifically bequeath  in  this  manner;  "  all  the  farm  held  by  me  on  lease 
from  A. ;"  all'  lands  and  tenements  held  and  enjoyed  under  such 
lease  will  pass  to  the  legatee.  And-  if  the  testator  descend  to  fur- 
ther particulars,  and  devise  thus,  "  all  that  my  farm  called  C.  and 
now  in  the  occupation  of  A"  but  part  of  it  happens  to  be  in  the  oc- 
cupation of  B.;  the  whole  of  the  farm  will  nevertheless  pass  under 
the  first  words,  because  it  is  the  obvious  intention  that  all  the  lands, 
parcels  of  farm  C.  should  belong  to  the  devisee,  in  whose  occupa- 
tion soever  they  might  be ;  the  latter  expressions  being  words  of 
suggestion  or  affirmation,  and  not  of  restriction  .or  limitation.  Parol 
evidence  also  is  admissible  to  ascertain  of  what  parcels  the  farm 
consists,  and  to  show  that  some  of  them  were  in  the  occupation  of  B. 

These  points  were  decided  in  the  case  of  Goodtitle  v.  Southern,(q) 
in  which  A.  devised  in  the  following  words  :  "  I  give  all  that  my 
farm,  lands,  and  hereditaments,  called  Troguesfarm,  situate  within 
the  parish  of  D.  in  the  county  of  D.  now  in  the  occupation  of  C. 
unto  B.  &c.  At  the  date  of  the  will,  the  farm  was  in  the  occupa- 
tion of  C. ;  but  two  closes,  the  subjects  in  dispute,  were  in  the  oc- 

(n)  2  Atk.  112.  (o)  2  Ves.  jun.  416. 

(/j)  3  Bro.  C.  C.  311.  (?)  1  Maule  &  Selw.  299. 


216  Rights  of  Specific  Legatees,  [Cn.  IV. 

cupation  of  M. ;  they  having  been  previously  occupied  with  the 
farm  but  let  by  A.  to  M.  before  the  will  was  made.     And  in  order 
to  show  that  »#.,  when  he  made  his  will,  considered  the  closes  as 
parcels  of  the  farm,  a  notice  to  quit  was  proved,  which  had  been 
i_ri\rn  to  Jl.  by  M.  a  few  months  before  the  date  of  the  .will;  by 
which  J/.  \v;is  required  to  deliver  up  possession  of  all  Jl's  lands,  be- 
lon^ing  to  and  called  Trogues  farm,  in  the  .parish  of  !>.,  then  in 
M.'s  possession,  on,  &c.  The  question  was,  whether  the  two  closes 
in  the  occupation,  of  M.  passed  toB.,  and  whether  the  notice  could 
be  received  in  evidence  to  prove  those  closes  to  be  parcels  of  the 
farm1?    And  the  Court  of  King's  Bench  decided  both  questions  in 
the  affirmative.     Lord  Elknborough,  C.  J.  observing,  that  parcel  or 
no  parcel  was  always  a  question  of  evidence  for  a  jury;  and  that 
therefore  it  was  competent  to  show,  in  the  present  case,  if  there 
were  any  doubt,  that  the  two  closes  were  parcel  of  Trogues  farm, 
by  which  name  the  thing  was  sufficiently  ascertained  :  That  the  tes- 
tator contemplated  them  as  parcel  of  the  farm,  appeared  from,  the 
notice  to  quit ;  and  that  if  they  were  so,  the  word  "  all"  in  the  de- 
vise would  not  be  satisfied  by  their  .exclusion:  That  although  the 
testator  was  mistaken  as  to  the  person  in  whose  occupation  the  two 
closes  were,  the  error  was  harmless-,  since  the  devise  was  sufficiently 
comprehensive  ;  and  it  was  clear  that  he  meant  to  pass  all  which 
was  called  Trogues  farm,  and  which  was  a  plain  and  certain  descrip- 
tion :  and  that  the  defective  description  of  the  occupation  would  not 
alter  the  devise. 

The  reader  will  find  other  cases  upon  the  present  subject  collect- 
ed in  note(r) ;  from  which  he  will  be  able  to  form  a  judgment  when 
a  defective  description  of  the  occupation  will  and  will  not  be  re- 
strictive of  the  words  preceding  it. 

It  has  been  before  stated,  under  what  words  PLATE  will  pass  when 
it  is  not  mentioned  by  name  ;  but  it  remains  to  be  considered  what 
will  be  comprehended  under  that  term. 

The  usual  acceptation  of  the  word  "  plate"  is  wrought  gold  or  sil- 
ver; consequently  all  gold  and  silver,  or  silver  gilt,  will  be  included 
in  that  word.  But  things  which  are  only  washed  with  gold  or  silver 
are  not  to  be  looked  upon  as  plate;  for  the  gold  or  silver  used  in 
the  manufacture  is  trifling  and  secondary  ;  the  chief  ingredient  in 
the  composition  consisting  of  base  metal.  Still  instances  may  occur 
in  which  plated  articles  will  pass  under  the  description  of  plate. 
Suppose  A.  to  bequeath  his  plate  to  B.,  and  to  possess  nothing 
which  can  possibly  fall  under  the  denomination  of  plate,  except 
plated  goods,  they  will  pass  to  B. ;  for  it  is  clear  that  the  testator 
meant  to  pass  them  as  plate.  But  if  A.  had  also  proper  plate,  then 
it  is  presumed  that  the  plated  articles  would  not  pass,  unless  a  con- 
trary intention  appeared  from  the  context  of  the  will ;  and  such  an 
intention  may  be  shown  by  exception  of  a  plated  article  out  of  the 
bequest  of  the  plate,  as  appears  from  similar  instances  before  pro- 
duced in  this  sectioh.(s) 

(r)  Roe  v.  Fernon,  5  East,  51-79;  Doe  v.  Greathed,  8  East,  91-103.  Good- 
right  v.  rears,  11  Last,  58.  Doe  v.  Earl  of  Jersey,  1  Barn.  &  Aid.  550-557.  and 
Down  v.  Dawn.  7  1  aunt.  343.  (s)  Ante,  pp.  193.  and  200. 


SECT.  II.]          under  the  Words  of  the  Will.  IV! 

The  subject  next  to  be  considered  is, — 

SECT.  II.  What  will  pass  to  a  Specific  Legatee  under  a  general 
bequest  of  personal  Estate  in  the  Colonies. 

Since,  as  before  observed,  the  effect  of  a  bequest  of  personal  pro- 
petty  in  a  particular  place  is  to  pass  that  property  only  of  the  testa- 
tor in  the  place  described  either  at  the  date  of  his  will  or  at  his 
death,  according  to  the  terms  of  the  disposition, (t)  and  it  being  a 
rule  that  the  latter  is  to  be  considered  the  period,  (except  an  inten- 
tion to  confine  the  operation  of  the  bequest  to  the  making  of  the 
will  clearly  appear,(w)  it  follows  that  if  A.  bequeath  all  his  personal 
estate  in  Jamaica  or  in  the  East  Indies  to  B.,  and  remittances  are 
afterwards  made  to  England,  and  invested  in  the  English  funds,  or 
are  intended  so  to  be,  or  upon  some  other  security;  the  stock  or 
money  remitted,  although  consisting  of  colonial  property,  will  not 
pass  to  the  specific  legatee  ;  because  it  was  not  at  the  testator's 
death  in  the  place  mentioned  in  the  will,  and  therefore  does  not 
answer  the  description  of  the  bequest.  To  exemplify  this  by  au- 
thorities. 

A.  specifically  bequeathed  the  residue  of  property  in  Jamaica  to 
his  executors  to  sell,  and  to  remit  to  Great  Britain,  &c.  the  pro- 
ceeds and  all  other  monies  belonging  to  his  estate.  It  appeared 
that  B.  and  C.  were  indebted  to  A.  prior  to  his  will,  by  judgments 
obtained  in  Jamaica.  A,  not  being  satisfied  with  those  securities, 
authorized  D.  by  letter  of  .attorney,  to  sue  for  and  receive  all  debts 
owing  to  him  in  England;  under  which  D.  took  in  England  a  bond 
from  B.  (who  had  left  Jamaica  and  come  to  reside  in  this  country), 
payable  to  A.  by  instalments,  for  what  was  owing  on  the  judgments 
from  B.  and  C.  to  A.  D.  also  entered  up  judgment  in  the  Court 
of  King's  Bench  here,  upon  the  warrant  of  attorney  given  by  B.  for 
that  purpose,  which  last  transactions  took  place  three  years  before 
the  date  of  the  will.  It  was  one  of  the  questions,  whether^  under 
the  above  circumstances,  the  debt  passed  by  the  specific  bequest*? 
And  Lord  Alvanley,  M.  R.  decided  in  the  negative  1st.  Because 
it  did  not  appear  that  the  testator  intended  to  include  this  debt;  for* 
said  his  Honour,  "  the  testator,  at  the  time  of  making  his  will,  must 
be  supposed  to  have  contemplated  his  affairs,  and  to  have  had  a  de- 
finite meaning  as  to  the  words  he  used.  What  then  could  he  be 
supposed  to  mean  by  the  direction  to  his  executors  to  sell  and  dis- 
pose of  his  estate,  and  that  the  money  to  arise  from  such  sale,  with 
all  other  monies  belonging  to  his  estate,  or,  that  might  belong 
thereto,  should  be  remitted  to  Great  Britain,  &C.1?  Did  he  include 
this  debt1?  If  he  were  perfectly  cognizant  of  this  transaction,  did 
he  look  to  the  payment  in  Jamaica  by  J5.?  He  knew  it  was  a  debt 
payable  by  a  debtor,  who  had  removed  from  Jamaica,  living  in  this 
country,  who  had  given  security  for  payment  in  this  country,  ac- 
cepted by  his  attorney,  which  is  the  same  as  by  himself.  At  that 
time,  therefore,  it  must  be  supposed  he  looked  for  payment  in  Eng- 
land, so  that  his  debt  could  not  be  part  of  the  property  to  be  col- 
lected and  remitted  to  England.  My  inclination  is  in  favour  of  the 
legatees ;  but  I  do  not  see  sufficient  to  prove  that  the  debt  formed 

(0  Sujira,  p.  188.  et  seq.  (u)  Ibid. 

VOL.  i.  E  e 


2!  8  Rights  of  Specific  Legatees,  [Cn.  IV. 

part  of  that  specific  legacy."  And,  2dly,  because  "  if  this  debt 
were  paid  under  the  last  engagement,  the  executors  could  not  have 
received  it  under  an  administration  in  Jamaica,  nor  have  given  the 
debtor  a  discharge.  If  he  had  complied  with  the  obligation  they 
must  have  an  administration  here.  It  would  then  be  a  strong  thing 
to  say  that  the  debt  passed  to  them,  when  they  could  not  by  their 
administration  in  Jamaica  have  collected  it."(x) 

So  also  in  Sadler  v.  Turner,(y)  Jl.  bequeathed  the  residue  of  his 
fortune  in  India  to  his  two  children,  and  directed  his  executors  there 
to  remit  to  England,  through  the  Company's  treasury,  all  such  pro- 
perty as  he  might  be  possessed  of  at  his  death.  Between  that  event 
and  the  date  of  the  will,  3237Z.  were  remitted  to  this  country,  and 
a  bill  for  500Z.  was  in  transitu  when  A.  died.  It  was  one  of  the 
questions,  whether  these  two  sums  passed  under  the  specific  be- 
quest of  the  residue  of  A's.  India  property  to  the  two  legatees'? 
And  Sir  William  Grant,  M.  R.  declared,  that  so  much  of  A's.  pro- 
perty as  was  remitted  after  the  will,  and  before  A's  death,  and  what 
was  at  that  time  in  transitu  were  to  be  considered  property  not  in 
India,  and  therefore  not  disposed  of.  His  Honour  observed,  as  the 
reason  of  the  decree,  that  the  will  could  operate  only  with  regard 
to  property  in  India  at  the  death  of  the  testator ;  and  he  continued, 
"  Supposing  the  words  to  be  taken  as  words  of  description,  yet  no- 
thing can  pass  but  what  he  has  described.  The  expression  of  in- 
tention alone  will  not  do ;  unless  some  words,  actually  disposing  of 
the  property,  can  be  found." 

SECT.  III.  Of  the  title  of  a  Specific  Legatee  to  an  excess  of 
the  fund,  whether  of  capital  OY  profits  accrued  between  the 
date  of  the  will  and  the  death  of  the  Testator. 

With  respect  to  the  title  of  a  specific  legatee  to  an  excess  of  the 
fund  accrued  or  added  to  it  between  the  date  of  the  will  and  the 
death  of  the  testator,  that  title  must  always  depend  upon  the  words 
of  the  bequest,  viz.  whether  the  words,  consistently  with  the 
testator's  intention,  include  within  their  import  such  excess.  If 
then  Jl.  bequeath  to  B.  5000Z.  bank  stock  standing  in  his  name, 
and 'a  bonus  be  given  by  the  bank,  under  the  statute  56  Geo.  3. 
chap.  96,  sect.  3,  in  the  interval  between  the  date  of  the  will  and 
the  testator's  death,  the  additional  capital  will  not  pass  to  the  spe- 
cific legatee.  It  was  so  determined  by  Sir  Thomas  Plumer,  V.  C. 
in  JVbrm  v.  Harrison.(z) 

In  that  case  A.  after  reciting  that  he,  by  the  will  of  B.  was  em- 
powered to  dispose  of  several  capital  sums  of  1400/.  &c.  then  stand- 
ing in  C's.  name  in  the  books  of  the  Governor  and  Company  of  the 
bank  of  England,  bequeathed  the  said  several  sums  of  1400Z.  bank 
stock,  &c.  unto  D.  upon  trust,  &c.  A.  also  bequeathed  11,OOOJ. 
capital  bank  stock,  then  standing  in  his  name  in  the  same  books,  to 
E.  and  E.'s  children,  as  therein  mentioned.  Subsequently  to  those 
bequests,  and  during  A.'$  life,  the  bank  increased  the  capitals  of 
each  proprietor,  by  an  addition  of  twenty-five  per  cent,  by  which  the 
1400/.  stock  was  augmented  to  1750J.  and  the  11,000*.  to  13,750?. 

(or)  Mubett  v.  Murray,  5  Ves.  149-157.  (y)  8  Ves.  617-623, 

(z)  2  Madd,  268-281,  see  also,  Smith  v,  Fitzgerald,  3  Ves.  &  Bea.  2. 


SECT.  IV.]         under  the  Words  of  the  Will.  219 

which  were  standing  in  A.'s  name  at  his  decease.  One  of  the 
questions  was,  whether  these  bonuses  or  additional  capitals  passed 
to  the  specific  legatees  with  the  original  stocks  9  And  it  was  de- 
termined in  the  negative,  for  the  following  reasons :  "  The  specific 
legacy,"  said  the  Court,  "  is  of  11,OOOZ.  bank  stock,  and  it  cannot 
be  said  that  13,750/.  bank  stock  passes  under  a  legacy  of  11,000/. 
bank  stock.  There  are  no  words  in  the  will  to  pass  the  additional 
capital  to  the  legatee.  On  the  same  principle  the  legatees  of  the 
1400Z.  stock  are  entitled  only  to  that  stock." 

It  seems  to  be  an  inference  from  the  principles  of  the  last  two 
cases,  that  if  a  specific  bequest  be  made  of  all  or  the  whole  of  a 
testator's  bank  stock,  or  three  per  cent  consols,  now  standing  in  his 
name,  subsequent  bonuses  given  by  the  bank  during  his  life,  or 
after  purchased  or  acquired  three  per  cents,  cannot  pass,  because 
the  terms  of  the  gift  do  not  embrace  them.  But  that  if  the  bequest 
be  of  all  the  bank  stock  or  three  per  cent  consols,  which  shall  be 
standing  in  the  testator's  name  at  the  time  of  his  death,  such  bonuses 
and  after  acquired  annuities  will  pass  to  the  legatee,  as  falling 
within  the  words  and  intention  of  the  testator. (a) 

To  apply  these  rules  to  the  instance  of  a  partnership.  The  last 
two  cases  prove  that  intention  alone  is  insufficient  to  pass  increased 
capital  to  the  specific  legatee  ;  but  that  words  disposing  of  it  are  ne- 
cessary. If  then  A.  bequeath  to  B.  all  that  is  now  due  to  him  (A.) 
in  respect  of  his  partnership  with  C.  nothing  would  belong  to  B.  but 
what  was  actually  due  to  A.  at  the  date  of  his  will,  since  the  words 
of  gift  confine  the  legacy  to  that  period,  and  increased  capital  and 
profits  between  the  date  of  the  will  and  the  testator's  death  would 
form  parts  of  his  general  personal  estate.  But  if  the  bequest  were 
of  all  A.'s  interest  in  the  concern,  or  of  his  moiety  or  share  in  the 
capital  and  profits  of  the  partnership,  (terms  not  confining  the  legacy 
to  the  date  of  the  will,  but  sufficiently  comprehensive  to  include 
whatever  A.  might  be  entitled  to  on  the  above  accounts  at  his 
death,(b)  the  whole  then  due  to  him  would  pass  to  the  specific  le- 
gatee. 

SECT.  IV.    Of  Mistakes  in  regard  to  the  Subject  specifically 
bequeathed.     And, 

1.  Of  mistakes  in  the  description  of  the  fund,  and  the  admissibili- 
ty  of  extrinsic  evidence. 

It  was  noticed  in  the  last  chapter,(c)  that  a  mistake  in  describing 
a  chattel  specifically  bequeathed,  would  not  be  fatal  to  the  legacy; 
and  an  instance  was  produced  of  a  horse  bequeathed  as  white,  when 
the  only  one  the  testator  had  was  black.  The  principle  was,  that 
the  testator  meant  to  give  his  horse ;  which  clearly  appearing,  the 
Court,  in  support  of  the  bequest,  rejected  the  word  white  as  a  mere 
error  of  description,  so  that  the  clause  standing  thus,  "  I  give  my 
horse  to  B.,"  was  sufficient  to  pass  the  black  horse. 

But  it  must  be  observed,  that  the  state  of  the  testator's  property 
when  he  made  his  will  was  necessary  to  be  considered  ;  which,  when 
compared  with  the  description  of  the  horse  bequeathed,  showed  that 
there  was  no  white  horse  to  be  delivered  to  the  legatee.  Hence  a 

(a)  See  15  Ves*  327.  (A)  See  ante,£.  188.  (c)  Supra,  p.  151. 


Rights  of  Specific  Legatees.  [On.  IV. 

latent  ambiguity  arose  from  the  above  comparison  in  regard  to  the 
testator's  intention,  viz.  whether  he  did  not  intend  for  the  legatee 
tin-  horse  he  was  possessed  of  when  he  made  his  will,  whatever  might 
IK-  its  colour;  yet,  without  taking  into  consideration  the  testator's 
property,  it  is  obvious,  that  the  black  horse  could  not  be  claimed  by 
the  legatee  under  the  description  of  a  white  one.  It  however  being 
>eitled,  that  in  such  a  case  the  bequest  of  the  horse  will  take  place 
upon  the  inference  drawn  from  a  comparison  of  the  state  of  the  tes- 
tator's property  when  he  made  his  will  with  the  terms  of  the  bequest, 
hall  consider  the  application  of  the  principle  to  instances  of 
stock. (d)  Suppose,  then,  a  testator  being  possessed  of  three  per 
cent  consols,  but  having  nothing  in  three  per  cent  reduced,  bequeath- 
ed to  B.  all  his  stock  in  three  per  cent  reduced:  if  the  state  of  his 
property  could  not  be  admitted,  to  show  error  in  the  description  of 
the  fund,  the  legacy  would  be  void  ;  but  since,  as  in  the  former  case, 
it  was  taken  into  consideration,  consistency  of  principle  requires  that 
it  should  be  so  in  the  present,  and  consequently  the  error  being  made 
to  appear,  the  bequest  will  pass  the  stock  in  three  per  cent  consols. 
In  Selwood  v.  Mildmay,(e]  Lord  Mvanley  expressed  himself  on  this 
subject  to  the  following  effect:  "  If  the  testator  had  the  stock  at  the 
time,  it  would  be  considered  specific,  and  that  he  meant  that  identical 
stock,  and  any  act  of  his  destroying  that  subject  would  be  a  proof 
of  animus  revocandi ;  but  if  it  be  a  denomination,  not  the  identical 
corpus,  in  that  case,  if  the  thing  itself  cannot  be  found,  and  there  is  a 
mistake  as  to  the  subject  out  of  which  it  is  to  arise,  that  will  be  rec- 
tified." We  shall  now  consider  the  cases. 

In  Door  v.  Geary,(f)  A.  bequeathed  to  his  wife  B.  1001.  capital 
East  India  stock,  in  which  he  was  then  interested,  possessed  of,  or 
entitled  to.  He  had  not  at  that  time  any  East  India  stock,  but  there 
was  1001.  bank  stock,  to  which  his  wife  was  entitled  under  the  will 
of  C.  (whose  executrix  she  was,)  after  payment  of  debts,  and  which 
A.  afterwards  transferred  into  his  name  and  made  his  own.  The 
question  was,  whether  this  700Z.  bank  stock  should  pass,  although 
described  as  East  India  stock  *?  And  Lord  Hardwicke  decided  in 
the  affirmative,  observing  that  the  mistake  was  error  demonstrationist 
and  that  the  words  East  India  should  be  rejected. 

In  addition  to  the  above  authorities,  is  that  of  Lord  Kenyon,  M.  R. 
in  Dodson  v.  fVaterman,(g)  in  which  A.  bequeathed  to  B.  the  sum 
of  7001.  capital  stock  in  the  three  per  cent  consols,  part  of  his  then 
stock  in  that  fund.  He  was  not  possessed  of  any  stock  whatever  at  the 
bank  when  he  made  his  will,  or  at  the  time  of  his  death ;  but  he  had 
1800J.  three  per  cent  South  Sea  annuities.  A.  was  blind  at  the  date 
of  his  will,  and  had  been  so  for  many  years.  And  the  only  question 
was,  whether  B.  was  entitled  to  700Z.  part  of  the  South  Sea  annui- 
ties, A.  never  having  had  any  such  stock  as  was  specified  in  his  will 
to  answer  the  bequest  <?  The  Master  was  directed  to  report  to  the 
Court  the  state  of  the  testator's  property  at  the  date  of  his  will,  who 
certified  as  above.  Upon  which  Lord  Kenyon  ordered  a  transfer  of 
TOO/.  South  Sea  annuities  to  B. 

The  principle  of  the  last  decision  is  the  same  with  that  of  the  case 

(rf)  See  Evans  v.Trififi,  6  Mad.  91.  (e)  3  Ves.  310. 

(/)  1  Ves.  sen.  255.  )  3  Ves  m,  in  a  note. 


SECT.  IV.]          under  the  Words  of  the  mil.  221 

preceding  it,  viz.  that  error  demonstrationis  non  nocet,  and  that,  to 
enable  the  Court  to  correct  the  mistake,  the  state  of  the  testator's 
personal  estate  when  he  made  his  will,  may  be  resorted  to.  His 
Honour  accordingly  observed,  that  the  state  of  the  testator's  proper- 
ty made  it  manifest  he  was  under  a  mistake  as  to  the  particular  stock 
belonging  to  him ;  but  that,  whatever  stock  it  was,  he  certainly  in- 
tended to  give  the  sum  of  700Z.,  part  of  it,  to  B. 

So  in  Gallini  v.  JVbWe,(&)  the  testator  bequeathed  all  his  money 
in  the  Bank  of  England  to  his  daughters.  It  appeared  that  he  never 
had  money  in  the  bank,  but  that  he  was  entitled  to  some  three  per 
cents  and  Jive  per  cents  bank  annuities.  Sir  William  Grant,  M.  R. 
held  that  those  annuities  passed,  notwithstanding  the  inaccuracy 
with  which  the  testator  expressed  himself. 

And  in  Hewson  v.  Reed,(i]  the  testator  gave  legacies  of  stock, 
"  being  part  of  stock  standing  in  his  name  in  the  books  of  the  Bank 
of  England,"  when  all  the  stock  to  which  he  was  entitled,  was  stand- 
ing in  the  names  of  trustees.  Parol  evidence  of  mistake  was  ad- 
mitted to  show  and  rectify  the  error  in  describing  the  fund. 

Upon  similar  principle,  if  a  testator  evince  an  intention  to  bequeath 
sums  of  money  owing  to  him  by  B.  on  bond  and  other  securities, 
and  in  describing  the  subject,  as  a  whole,  he  mentions  the  sum  to- 
tal correctly,  but  incorrectly  states  it  as  owing  upon  B.'s  bond  only ; 
the  whole  debt  owing  by  B.  on  all  the  securities  will  nevertheless 
pass.  For  when  the  state  of  the  testator's  property  is  consulted, 
which  shows  that  a  part  only  of  what  was  intended  to  be  given,  was 
secured  by  the  bond  of  B.,  but  that  B.  was  indebted  to  the  testator 
in  the  sum  total  mentioned  in  the  will  upon  the  bond  and  other  se- 
curities ;  the  latent  ambiguity  of  mistake  arising  from  comparison 
of  the  terms  of  the  bequest  with  the  property,  enables  a  court  of 
justice  to  supply  the  defect  in  description  by  aid  of  the  context  ;  the 
intention  clearly  appearing  from  the  context  to  bequeath  the  whole 
of  the  debt  due  from  B.  in  whatever  manner  secured. (A;) 

Thus  in  Williams  v.  Williams,(l)  a  case  in  which  A.  made  the  fol- 
lowing disposition  :  "  Whereas  my  brother  B.  stands  indebted  to 
me  by  bond  in  the  sum  of  3001.  and  upwards,  now  I  dispose  of  the 
same  as  follows  :  one-third  thereof  to  the  said  B. ;  one-third  to  C., 
and  one-third  to  D. ;"  the  three  being  brothers  of  A.  The  debt 
owing  by  B.  was  as  executor  of  E.,  who  was  indebted  to  A.  in  2001. 
only  by  bond;  in  1001.  by  covenant ;  and  who  had  also  given  him 
a  legacy  of  501.  which  remained  unpaid.  Upon  a  question  whether 
the  whole  debt  owing  by  B.,  or  the  2001.  only  secured  by  the  bond 
passed "?  Lord  Kenyan,  M.  R.  said,  he  had  no  difficulty  in  declaring 
what  A.  meant  to  give,  although  the  expression  did  not  describe  the 
situation  of  the  money.  His  Honour  conceived  that  A.  thought  of 
the  quantity  of  the  property  ;  for  having  three  relations,  B.,  C.  and 
D.,  he  meant  to  give  them  the  3001.  owing  to  him  from  B.,  and  con- 
sequently to  include  all  B.'s  debt.  The  decree  was,  that  the  debts 
by  bond  and  covenant,  and  the  legacy,  passed  under  the  bequest. 

(A)  3  Meriv.  692.  and  see  Penticost  v.  Ley,  2  Jac.  &  Walk.  207. 
(0  5  Mad.  451.  (k)  See  ante,  p.  213. 

(/)  2  Bro.  C.  C.  87.  ed.  by  Belt,  and  see  Milner  v.  Milner,  1  Ves.  sen.  106.  in- 
fra, vol.  2.  ch.  21. 


222  Rights  of  Specific  Legatees,  [Cn.  IV. 

In  conformity  with  the  cases  upon  the  present  subject,  was  deci- 
ded the  case  of  Selwood  v.  Mildmay  ;(m]  in  which  B.  bequeathed 
to  C.  for  life  the  interest  of  1250Z.  "part  of  his  stock  in  the  four 
<cnt  annuities  of  the  Bank  of  England,  with  such  dividends  as 
should  be  due  on  the  said  12501.  at  his  death ;"  and  he  gave  the  ca- 
pital after  C.'«  decease  to  several  persons,  always  describing  his  stock 
as  his  four  per  cent  stock.  It  appeared  that  he  had  not  any  four  per 
cents  either  when  he  made  his  will  or  at  his  death  ;  but  that  about 
two  years  prior  to  the  will,  he  sold  the  whole  of  his  stock  in  that 
fund,  and  invested  the  proceeds,  also  previously  to  his  will,  in  long 
annuities,  of  which  he  had  137/.  standing  in  his  name  at  his  decease. 
These  facts  were  proved  before  a  Master  by  affidavit,  and  reported 
by  him  to  the  Court ;  as  also  the  substance  of  the  affidavit  of  the  at- 
torney who  prepared  the  will,  stating  how  the  error  in  describing  the 
fund  arose.  And  Lord  sllvanley,  M.  R.  decided,  that  the  legacy 
should  not  be  disappointed,  but  be  paid  out  of  the  testator's  per- 
sonal estate. 

The  reasons  for  his  Honour's  decree  appear  to  have  been  two ; 
first,  that  a  latent  ambiguity  arose  from  the  circumstances  of  the  tes- 
tator not  being  sufficient  to  meet  the  legacy  he  had  given  ;  and  se- 
condly, that  such  ambiguity  authorized  the  admission  of  parol  evi- 
dence to  show  how  the  mistake  arose ;  the  error  itself  being  suffi- 
ciently apparent. 

But  the  case  is  of  no  further  authority  from  the  facts  contained  in 
it  than  to  the  following  extent :  that  when  a  legacy  is  specific,  col- 
lateral evidence  (of  the  state  of  the  testator's  property  at  the  date 
of  the  will)  may  be  received  concerning  the  subject  to  which  the 
bequest  applies,  for  the  purpose  of  ascertaining  whether  the  descrip- 
tion agrees  with  it  or  not ;  and  that  if  there  be  no  such  fund  belong- 
ing to  him  as  that  described,  and  he  had  property  in  other  funds  not 
answering  the  exact  description,  but  of  the  same  nature  with  it,(w) 
such  property  will  pass  to  the  legatee,  upon  the  presumption  that  it 
was  meant  to  be  given,  though  under  a  mistaken  description.  Such, 
it  is  presumed,  is  the  law  established  by  the  cases.  They  are  far 
from  countenancing  the  proposition,  that  if  a  testator  had  any  stock 
in  the  fund  described,  either  the  state  of  his  property,  or  any  other 
extrinsic  evidence  could  be  admitted  to  explain  or  ascertain  the 
meaning  of  the  testamentary  words  used  in  disposing  of  it ;  a  sub- 
ject which  we  shall  proceed  to  consider — 

Secondly.  No  rule  of  law  is  more  clear,  than  that  a  will  is  not  to 
be  expounded  by  extrinsic  evidence.     Hence  the  intention  of  tes- 
l      tators  in  making  a  specific  bequest,  or  in  giving  a  general  legacy, 
>t*-^  cannot  be  controlled  by  the  statement  of  their  property. 

Accordingly,  in  Innes  v.  Johnson,  a  decision  upon  the  question 
whether  a  bond  was  specifically  bequeathed,  Lord  Jllvanley,  M.  R. 
*4f  it'r*. :/*hus  expressed  himself  :'o)  "It  turns  out  that  there  was  among  the 
assets  one  bond  for  the  exact  amount  of  the  legacy  ;  but  there  were 
^  also  many' other  bonds  belonging  to  the  testator,  and  it  was  insisted, 
"ahd  very  properly,  that  the  Court  is  to  determine,  upon  the  face  of 
the  will,  whether  the  legacy  be  specific  or  pecuniary,  and  not  to  tra- 

p  3-.Ves-  506-  (n)  See  Evans  v.  Trifl/i,  6  Mad.  91.     . 

)  4  Yes.  573.  stated  sw/ira,  p.  J74. 

-w-fc 


SECT.  IV.]          under  the  Words  of  the  Will.  223 

vel  into  the  account  of  the  effects  to  see  whether  that  shall  be  turn- 
ed into  a  specific  legacy,  which  upon  the  face  of  the  will  is  to  be 
taken  as  pecuniary. (p)  It  was  argued,  I  think  with  great  success, 
that  if  upon  the  face  of  the  will  the  legacy  is  to  be  presumed  not  to 
be  specific,  I  ought  not  to  travel  into  the  account  of  the  effects  to 
turn  it  into  a  specific  legacy.  If  it  had  rested  upon  the  first  words, 
3001.  upon  bond,  should  I  ask  any  other  -question  than  this,  whether 
the  testator  had  more  than  one  bond  9  If  he  had  only  one  of  that 
particular  amount,  that,  I  think,  is  not  sufficient,  and  would  be  too 
slight  a  ground ;  but  if  he  had  only  one  bond  in  the  world,  I  must 
have  supposed  he  meant  that."  From  this  opinion,  and  the  cases 
referred  to  in  the  last  note,  it  seems  to  follow,  that  however  difficult 
it  may  be  to  ascertain  the  meaning  of  a  testator  from  the  expressions 
used  by  him,  a  Court  is  bound  to  confine  itself  to  the  will's  context, 
and  to  put  the  best  construction  it  can  upon  the  whole  without  call- 
ing in  aid  extrinsic  evidence  to  explain  .the  words  of  the  bequest. 
Thus  a  legacy  of  50/.  a  year  in  long  annuities  cannot  be  changed 
from  an  annuity  to  a  capital  sum  of  that  amount,  either  from  the  state 
of  the  testator's  property,  or  other  extrinsic  evidence  showing  that  a 
sum  of  501.  only  was  intended  to  be  given. (9)  Of  if,  from  the  words 
used  in  reference  to  the  fund, 'it  be  doubtful  whether  a  principal 
sum  might  not  be  intended  instead  of  an  annuity ;  still,  unless  the 
context  clearly  show  an  intention  that  a  capital  sum  only  was  meant 
to  pass,  it  is  presumed  that  the  legacy  must  be  of  an  annuity,  and 
not  of  a  gross  sum ;  and  that  external  evidence  as  to  the  state  of 
the  testator's  property  cannot  be  admitted  to  control  what  would  be 
the  legal  import  and  effect  of  the  terms  of  the  bequest,  upon  a  fair 
construction  of  the  whole  will,  without  collateral  aid.(r)  There  is  a 
case,  however,  difficult  to  be  reconciled  with  these  observations, 
which  it  is  necessary  to  consider. 

In  Fonnereau  v.  Poyntz,(s)  A.  bequeathed  "  the  sum  of  5001. 
stock  in  long  annuities  to  B.;"  and  after  two  other  legacies  express- 
ed in  similar  language,  Jl.  gave  to  C.  "  the  sum  of  2001.  stock  in 
long  annuities ;  the  interest  thereof  to  accumulate  till  C.  attained 
the  age  of  twenty-one,  and  then  the  whole  to  be  transferred  to  her." 
And  he  gave  another  legacy,  similarly  expressed,  to  D.  A.  had  120/. 
a  year  long  annuities,  and  no  more.  And  the  question  was,  whether 
capital  sums  only  were  intended  for  the  legatees  ?  in  which  case, 
the  proceeds  from  the  sale  of  the  long  annuities  would  be  sufficient  to 
pay  all ;  or  whether  annuities  of  those  amounts  were  intended  9  and 
if  so,  then  the  estate  of  Jl.  would  be  greatly  insufficient  to  answer 
those  purposes.  The  solution  of  the  question  depended  upon  a  pre- 
liminary one,  viz.  whether  the  state  of  JISs  property  could  be  look- 
ed at  to  enable  the  Court  to  put  such  a  construction  upon  the  words 
of  the  bequests,  as  from  the  condition  of  that  property  it  was  likely 
that  he  meant  in  using  those  words  9  And  Lord  Thurlow  decided, 
that  such  evidence  was  admissible  in  this  instance,  since  the  ex- 
pression in  the  will,  viz.  "  sum  of  /.  stock  in  long  annuities" 
used  in  giving  some  of  the  legacies,  and  interest  being  directed  to 

(/z)  See  Andrews  \.  Emmot,  2  Bro.  C.  C.  297-303.  ed.  by  Belt,  and  Lord  El- 
don's  observations  in  Nannock  v.  Horton,  7  Ves.  400.  See  also  2  Meriv.  537.  1 
Swanst.  71.  (?)  1  Bro.  C.  C.  482.  3  Meriv.  319.  and  see  Chambers  v. 

Minchin,  4  Ves.  675.  (r)  1  Ves.  jun.  285.  (»)  1  Bro.  C.  C  472. 


224  Rights  of  Specific  Legatees,  [Cn.  IV. 

accumulate,  in  the  others  upon  "  sums  of  I.  stock  in  long  annui- 
rendered  it  uncertain  upon  the  whole  context  of  the  will 
whether  .7.  intended  to  give  gross  sums  or  annuities;  which  uncer- 
tainty (thmijfh  appearing  on  the  face  of  the  will,  and  therefore  a 
patent  ambiguity)  authorized  the  admission  of  evidence  dehors  the 
will  to  show  whether  A.  really  meant  to  give  annuities  or  gross  sums. 
The  state  of  .#•'*  property  being  thus  admitted  to  prove  what  he 
nu'iint  to  pass  by  the  words  of  his  will ;  his  Lordship  finally  decreed 
(but  not  without  difficulty  as  to  the  admissibility  of  the  evidence) 
that  the  legatees  were  only  entitled  to  capital  sums,  since  it  appear- 
ed, from  the  state  of  A.'s  property,  that  if  they  took  annuities,  they 
would  amount  to  ten  times  more  than  A.  was  worth. 
The  following  are  objections  which  may  be  taken  to  the  last  decree: 
First,  that  the  legacies  not  being  specific,  but  so  given  as  to  be 
satisfied  by  the  executors  purchasing  long  annuities,  if  the  assets 
had  been  sufficient,  the  principle  upon  which  evidence  of  the  state 
of  the  testator's  property  is  admitted  to  correct  a  mistake  in  the 
description  of  the  fund  intended  to  be  given,  or  of  part  of  it,  does 
not  apply  :  that  principle  was  mentioned  and  illustrated  in  the  first 
subdivision  of  this  section.  This  remark  appears  to  meet  the  obser- 
vations made  by  Lord  Eldon  in  support  of  this  decree  in  Druce  v. 
Dennison.(t)  Secondly,  that  an  obscurity  arising  upon  the  face  of 
a  will,  does  not  authorize  an  explanation  of  its  terms  by  extrinsic 
evidence.  So  that  in  this  case,  whether  A.  meant  by  the  words  used 
by  her,  capital  sums  or  annuities  was  a  question  only  to  be  deter- 
mined by  the  legal  import  of  such  words,  and  what  clearly  appeared 
from  the  context  of  the  will.  And,  thirdly,  that  as  from  what  was 
plainly  expressed  in  the  will,  the  legatees  (as  admitted  by  Lord 
Thurlow)(u}  would  have  been  entitled  to  annuities ;  the  legal  import 
of  those  expressions  ought  not,  as  it  is  conceived,  to  have  been  con- 
trolled by  any  thing  dehors  the  will ;  and  not  even  by  the  context, 
unless  it  clearly  showed  what  was  the  intention  of  A.  in  using  the 
words  in  contradiction  to  their  legal  sense.  As  to  this,  the  obser- 
vations of  Sir  William  Grant  are  particularly  applicable,  which  will 
be  afterwards  stated  when  the  case  of  the  Attorney  General  v. 
Grote(x)  is  considered. 

It  would  seem,  that  for  the  above  reasons,  the  case  of  Fonnereau 
v.  Poyntz  must  be  considered  anomalous.  And  although  Sir  Wil- 
liam Grant  intimated  that  in  a  case  precisely  the  same  he  might  be 
disposed  to  follow  that  precedent,(2/)  yet  when  it  is  known  that  his 
inducement  to  do  so  would  be  the  great  disproportion  between  the 
state  of  the  testator's  property  and  the  legacies,  if  considered  annui- 
ties, it  may  be  doubted,  whether  if  his  Honour  had  been  pressed  for 
a  decision  in  such  a  case,  he  would  not  have  hesitated  in  adopting 
the  precedent  of  Fonnereau  v.  Poyntz,  upon  the  ground  that  the 
rule,  as  to  non-admission  of  evidence  aliunde  to  explain,  alter  or  con- 
trol the  words  of  a  will  has  no  dependence  upon,  or  relation  to,  the 
adequacy  or  insufficiency  of  the  property  to  answer  the  bequests,(z) 
but  is  founded  upon  the  principle  that  a  will  in  writing  cannot  be 
varied  or  explained  by  parol  testimony. 

it)  6  Ves.  401.  and  see  Chambers  v.  Minchin,  4  Ves.  675.       (u)  1.  Bro.  C.  C.  479. 
(.r)  3  Meriv.  321.  and  see  Hay  v.  Earl  of  Coventry,  3  Term  Rep,  85. 
(y)  3  Meriv.  319.  (r)  Jones  v.  Curry,  1  Swanst.  71. 


SECT.  IV.]          under  the  Words  of  the  Will.  225 

In  proof  that  where  the  legacy  is  general  of  a  sum  of  money  in  a 
particular  stock,  in  which  the  testator  had  no  property,  evidence 
cannot  be  received  to  show  that  he  meant  to  give  it  out  of  other  pro- 
perty of  which  he  was  possessed  in  another  stock,  may  be  adduced 
the  case  of  Chambers  v.  Minchin,(a)  in  which  A.  after  giving  the 
trustees  lOOOf.  to  lay  out  in  government  or  other  securities  upon  cer- 
tain trusts,  bequeathed  to  them  "  a  further  sum  of  2,400Z.  in  the  five 
per  cent  consolidated  bank  annuities,"  upon  various  trusts.  The 
only  stock  which  A.  had  at  her  death,  was  156Z.  a  year  long  annui- 
ties; and  the  question  was,  whether  a  sum  of  2400J5.  should  be  vested 
in  five  per  cent  annuities,  or  the  bequest  was  to  be  considered  as  of 
so  much  as  would  produce  1201.  per  annum  long  annuities ;  and  evi- 
dence was  offered  to  show  that  the  latter  was  ASs  intention,  and  the 
reference  in  the  will  was  a  mere  mistake  in  the  description  of  the 
fund.  But  Lord  Rosslyn  rejected  such  evidence,  and  decreed  upon 
the  words  in  the  will,  that  a  sum  of  2400Z.  should  be  purchased  by 
the  executors  in  five  per  cent,  annuities. 

The  principle  of  the  last  decree  seems  to  have  been,  that  the  lega- 
cy being  in  form  general  of  a  sum  to  be  invested  in  a  fund  suffici- 
ently, though  inaccurately,  described,  the  rule  that  prevails  in  such 
cases  apply  to  the  present,  viz.  that  the  executor  should  purchase 
the  sum  specified  in  the  fund  intended.  And  that  since  there  was 
no  necessity,  (as  in  the  instance  of  a  specific  legacy)  to  resort  to  the 
state  of  the  testator's  property  to  ascertain  the  agreement  between 
it  and  the  thing  given,  evidence  dehors  the  will  was  not  admissible 
to  raise  a  mistake,  and  then  to  correct  it  upon  proof  of  the  testatrix's 
intention.  Hence  this  case  is  in  harmony  with  the  distinctions 
which  have  been  made  on  the  admissibility  of  extrinsic  evidence  in 
exposition  of  wills. 

But  suppose  legacies  to  be  given  specifically  as  annuities  in  a  par- 
ticular fund,  in  which  the  testator  had  annuities,  but  inferior  in 
amount  to  those  given,  and  yet  amply  sufficient  to*  answer  the  lega- 
cies if  considered  as  bequests  of  capital  sums,  there  is  no  principle 
upon  which  evidence  to  prove  the  latter  to  have  been  the  intention 
could  be  admitted  that  would  not  authorize  the  introduction  of  such 
evidence  for  the  exposition  of  wills  generally.  It  should  seem,  there- 
fore, that  in  the  instance  proposed,  the  state  of  the  testator's  pro- 
perty may  be  so  far  looked  at  as  to  see  whether  any  parts  of  it  con- 
sists of  the  particulars  described  in  the  specific  disposition,  and  for 
no  other  purpose ;  so  that  if  the  words  of  the  bequest  give  annuities 
exceeding  the  amount  of  the  fund,  the  legatees  must  abate ;  and  it 
is  conceived  that  the  mere  circumstance  of  the  property  being  in- 
sufficient to  answer  the  legacies  as  annuities  is  not  allowable  to  alter 
or  restrain  the  legal  import  of  the  words  of  the  bequest.  The  case 
next  stated  proves  this;  and  it  seems  an  authority  in  direct  oppo- 
sition to  Fonnereau  v.  Poyntz  before  considered;  and  it  also  con- 
firms what  was  before  stated,  that  patent  ambiguities,  i.  e.  obscuri- 
ties appearing  upon  the  face  of  a  will,  cannot  be  dispelled  by  extrin- 
sic evidence,  but  that  the  testator's  intention  must  be  collected  from 
a  rational  construction  of  his  whole  will. (&) 

(a)  4  Ves.  675.  (6)  On  the  present- subject  see  ante,  Chap.  II.  sect.  18. 

VOL.  I.  F   f 


226  fiigkts  of  Specific  Legatees,  [CH.  IV. 

Thus  in  the  Attorney  General  v.  Grote,(c)  A.  specifically  bequeath- 
ed two  legacies  of  51.  each  to  B.  and  C.,  by  descriptions  of  "  5Z. 
per  annum  bank  long  annuities."  A.  then  gave  to  D.  and  E.  two 
legacies  of  100J.  each,  in  these  words,  "  lOOZ.  long  annuities  stock" 
and  she  bequeathed  to  jP.  "  301.  a  year  further  part  of  her  long  an- 
nuities," to  apply  the  dividends  as  therein  mentioned.  A.  also  gave 
to  G.  "  150J.  bank  long  annuities  stock"  and  made  a  codicil  in 
which  A.,  after  noticing  that  she  might  have  made  a  wrong  calcu- 
lation of  the  value  of  her  fortune  in  the  funds  from  the  uncertainty 
of  their  price  at  her  death,  directed  an  eventual  deficiency  to  be  sup- 
plied by  her  residuary  estate.  A.  died  possessed  of  3S  51.  per  annum 
long  annuities,  and  of  no  other  stocks  or  annuities.  The  long  annui- 
ties and  her  other  personal  estate  were  insufficient  to  pay  her  debts, 
funeral,  and  testamentary  expenses,  without  the  aid  of  the  long  annui- 
ties ;  and  was  insisted,  in  opposition  to  Z>.'s  claim  of  100Z.  a  year  long 
annuities,  that  under  the  circumstances,  the  legacy  ought  to  be  consi- 
dered a  capital  sum  of  WOl.  to  be  raised  by  sale  out  of  those  annuities. 
But  Sir  William  Grant,  M.  R.  decreed  that  the  legacy  was  of  100/L 
a  year  long  annuities ;  and  said,  there  could  be  no  doubt  that  if  A. 
had  given  a  single  legacy  "  of  1001.  long  annuities  stock,"  the  le- 
gatee would  have  been  entitled  to  a  long  annuity  of  that  yearly 
amount.  But  that  a  doubt  was  raised  partly  from  the  circumstance 
that  A.  had  not  stock  enough  to  answer  all  the  legacies  she  had 
given  in  these  terms,  if  they  were  considered  as  annuities,  and  partly 
from  her  having,  in  other  instances,  specified  her  legacies  as  con- 
sisting of  so  much  per  annum  in  bank  long  annuities.  His  Honour 
admitted  that  those  circumstances  created  a  doubt  whether  A.  meant 
to  give  1001.  per  annum,  when  she  did  not  expressly  say  so,  but  he 
said,  that  if  A.  did  not  so  mean,  he  was  greatly  at  a  loss  to  say  what 
it  was  that  she  did  mean;  since  it  Was  hardly  conceivable  that  any  per- 
son intending  merely  to  give  100J.  in  money,  should  use  the  words, 
"long  annuities  stock."  And  his  Honour  in  concluding  his  judgment 
thus  expressed  himself:  "The  question  comes  round  to  this ;  whether, 
as  the  words  used  are  properly  descriptive  of  so  much  stock  of  bank 
long  annuities,  it  appears  (as  Lord  Thurlow  thought  it  did  in  Fon- 
nereau  v.  Poyntz,(d]  perfectly  clear,  from  other  circumstances  which 
amount  to  demonstration,  that  A.  did  not  mean  them  in  that  sense  *?  I 
think  it  does  not,  and  that  therefore  I  am  not  warranted  in  striking 
out  or  leaving  inoperative  the  words  '  long  annuities  stock.'  To 
authorize  a  departure  from  the  words  of  a  will  it  is  not  enough  to 
doubt  whether  they  were  used  in  the  sense  which  they  properly 
bear.  The  Court  ought  to  be  quite  satisfied  that  they  were  used  in 
a  different  sense ;  and  ought  to  be  able  distinctly  to  say  what  the 
sense  is  in  which  they  were  meant  to  be  used.(e)  A  legacy  of  100Z. 
is  a  different  thing  from  a  100Z.  stock.  A.  has  expressly  given  « 100Z. 
long  annuities  stock  ;'  but  I  am  desired  to  hold  that  she  meant  100J. 
in  money.  I  do  not  say  it  is  not  doubtful  whether  she  may  not  have 
meant  this ;  but  there  is  not  enough  to  show  clearly  that  it  is  what 
she  did  mean  ;  I  must  therefore  abide  by  the  words  of  the  will  and 
decree  accordingly." 

(OSMeriv.  316.    (d)^ra,p.203.    (e)See Smith v.Maitland,  1  Yes.  jun.  362-364. 


SECT.  IV.]          under  the  Words  of  the  Will.  227 

Most  of  the  cases  before  produced  in  this  section  were  instances 
of  totally  erroneous  descriptions  of  the  things  intended  to  be  given, 
as  where  testators  had  no  property  whatever  to  bequeath  in  the 
funds  they  referred  to.  We  shall  now  proceed  to  consider(/) — 

3.  The  consequences  of  mistakes  in  the  calculation  of  the  spe- 
cific fund  of  which  the  testator  is  possessed  when  it  is  wholly  given 
to  an  individual  or  for  a  specific  purpose,  and  when  to  several  per- 
sons in  fractional  parts. 

As  to  the  first  it  is  settled,  that  when  the  intention  is  apparent 
from  the  will  to  give  a  particular  fund,  a  wrong  description  or  recital 
of  its  actual  amount  will  not  disappoint  the  bequest  whether  the  fund 
be  less  or  more  than  as  described. 

Thus  in  the  Attorney- General  v.  Pyle,(g)  A.  bequeathed  as  fol- 
lows :  "  Whereas  there  is  now  owing  to  me  from  B.  and  company 
the  sum  of  1000J.,  I  do  hereby  give  the  said  sum  to  C."  The  debt 
due  to  A.  at  his  death  was  no  more  than  365  J.  17s.  6d.  And  Lord 
Hardwicke  decreed  that  sum  to  C.,  observing,  "  that  a  wrong  des- 
cription and  falling  short  would  not  defeat  the  legacy." 

But  when  the  fund  exceeds  the  sum  at  which  it  is  estimated,  and 
the  form  of  bequest  purports  to  give  the  estimated  sum  only,  the 
excess  will  not  pass  to  the  specific  legatee,  unless  it  clearly  ap- 
pear, from  the  will's  context,  that  the  whole  of  the  property  was 
meant  to  be  given,  and  the  mentioning  of  the  smaller  sum  was  a 
mistake  ;  because  the  words  of  the  bequest  comprehend  no  more 
than  the  latter  sum.(^)  This  will  appear  from  the  case  of  Hotham 
v.  Sutton:(i) 

In  that  case  A.  by  her  will  recited  that  she  was  possessed  of 
12,700iL  three  per  cent  consols  standing  in  her  name,  and  gave  the 
same  or  so  much  of  such  bank  annuities  as  shouldbe  standing  in  her 
name  at  her  death,  to  her  executors  upon  several  trusts.  When  Jl. 
died,  and  also  when  she  made  her  will,  she  was  possessed  of  14,765Z. 
16*.  Qd.  three  per  cent  consols  ;  and  it  was  a  question  whether  the 
excess,  beyond  the  12,700Z.  three  per  cent  consols,  should  pass  to  the 
executors  under  the  above  bequest  9  And  Lord  Eldon  determined  that 
the  12,700Z.  three  per  cent  consols  only  passed  from  the  uncertainty  of 
the  real  intention  of  the  testatrix;  for  his  Lordship  said  that,  consider- 
ing the  bequest  not  to  be  of  12,700Z.  three  per  cents,  but  of  so  much 
of  such  annuities  as  should  be  standing  in  her  name  at  her  death  ; 
such  would  be  a  very  difficult  construction, — first,  as,  if  that  were 
JlSs  intention,  though  there  should  be  ten  times  the  amount,  there 
was  no  reason  for  reciting  she  was  possessed  of  the  above  sum  of 
12,700Z. ;  and  secondly,  from  the  consequence  that  if  Jl.  had  sold  the 
whole  of  the  stock,  and  remained  for  some  time  without  any,  and 
then  bought  other  stock,  the  Court  must  have  held  that  she  had  be- 
queathed not  what  she  had  at  the  date  of  her  will,  but  what  she  had 
at  her  death.  His  Lordship  also  observed,  that  he  could  not  suppose 
A.  to  be  ignorant  of  the  state  of  her  property,  unless  the  fact  ap- 
peared upon  her  will ;  and  that  it  did  not  follow  from  the  recital 
that  understanding  she  possessed  no  more  than  12,700Z.,  she  intend- 
ed to  give  all  she  possessed,  whether  more  or  less,  which  would 

(/)  See  Coljioys  v.  Colpoys,  1  Jac.  451.  (£•)  1  Atk.  435. 

(A)  See  ante,  p.  218,  219.  (i)  15  Ves.  319. 


228  Rights  of  Specific  Legatees,  [Cfl.  IV. 

amount  to  this  ;  that  measuring  her  bounty  and  the  extent  of  it  (as 
she  appeared  to  do  by  the  recital,}  she  intended  to  give  200,OOOZ.  if 
she  should  have  it.  Between  the  two  propositions  that  she  meant  to 
dispose  of  so  much  of  such  bank  annuities  as  by  the  recital  she  said 
she  had,  or  of  such  as  she  might  have,  though  upon  the  latter  con- 
struction, if  she  acquired  stock  to  the  amount  of  200,OOOZ.  the  whole 
roust  have  passed  to  make  good  a  bequest,  the  extent  of  which  she 
measured  by  the  recital  as  to  12,700/.,  his  Lordship  said  the  better 
legal  opinion  seemed  to  be  that  the  last  sum  only  passed. 

With  respect  to  the  consequences  of  a  miscalculation  of  the  spe- 
cific fund  where  it  is  bequeathed  in  fractional  parts. 

A  general  remark  may  be  made  as  applicable  to  this  subject :  that 
when  a  particular  fund  is  given  in  parcels,  and  the  sums,  or  parts  of 
stock  are  mentioned,  but  the  property  is  taken  to  be  more  than  its 
real  amount  or  value,  the  fund  must  be  divided  amongst  the  lega- 
tees according  to  their  proportions  of  it.  But  that  if  the  last  taker 
be  named  or  described  as  residuary  legatee  of  the  specific  subject, 
he  will  only  be  entitled  to  what  (if  any  thing)  shall  remain  after  the 
prior  specific  legatees  have  been  paid  in  full  their  several  propor- 
tions, subject  however  to  exceptions  when  a  contrary  intention  ap- 
pears from  the  context  of  the  will.  These  observations  will  be  illus- 
trated by  the  following  cases  : 

In  Danvers  v.  Manning,(k)  .#.,  after  specifically  bequeathing  by 
will  parts  of  his  stock  in  the  public  funds,  proceeded  by  codicil  to 
the  following  effect :  "  I  find  that  I  have  willed  away  only  5600/. 
in  bank  four  per  cents,  and  I  find  I  have  there  at  present  6000Z. ;  I 
give  the  interest  of  the  remaining  4001.  to  J5..for  life,  "and  at  her 
death,  it  must  go  with  the  rest  to  C."  A.  was  mistaken  in  what  he 
had  given  by  his  will,  for  the  residue  of  his  bank  four  per  cents 
exceeded  400J.  And  it  was  contended  for  B.  that  the  legacy  was 
not  particular,  but  residuary,  so  as  not  only  to  pass  the  4001.  but 
the  surplus  of  the  fund.  And  Lord  Thurlow  was  of  that  opinion,  al- 
though he  observed  that  A.  had  miscalculated  the  particular  residue, 
and  probably  did  not  mean  B.  to  take  so  much,  yet  his  Lordship 
thought  that  in  declaring  B.  to  be  entitled  to  the  whole  of  it,  he  was 
nearer  the  point  of  ASs  intention,  than  any  of  the  constructions 
contended  for  against  it. 

It  is  to  be  noticed,  that  in  the  last  case,  the  amount  of  J5.'« 
legacy  was  specified ;  yet,  since  it  was  given  in  the  form  of  residue 
of  the  fund,  and  there  was  no  expression  or  intention  as  to  what 
should  become  of  an  excess  beyond  the  400Z.  Lord  Thurlow  gave 
it  to  B.  in  the  character  of  residuary  legatee  of  the  specific  pro- 
perty. But  in  an  instance  which  will  be  next  produced,  although  the 
legatee  took,  as  in  the  last  case,  the  remainder  of  the  specific  fund 
n  the  form  of  a  residue;  yet  the  Court  decided  upon  the  context  of 
the  will,  that  he  was  to  be  considered  as  much  a  particular  legatee 
of  his  proportion,  as  the  other  specific  legatees  of  their  shares,  upon 
the  principle,  that  the  testator  had  assumed  the  property  he  directed 
to  be  sold,  would  produce  a  certain  sum,  which  he  intended  to  be 
divided  amongst  the  persons  named  in  his  will ;  it  being  supposed 

(*)  2  Bro.  C.  C.  19.  22.  Ed.  by  Belt.     1  Cox,  Rep.  S.  C.  203. 


SECT.  V.]  against  the  Executors.  229 

that  he  computed  the  share  of  the  last  taker,  although  it  was  not 
named,  but  given  to  him  as  the  residue  of  the  fund. 

Thus  in  Page  v.  Leapingwell,(l)  A.  devised  to  trustees  certain 
lands  to  sell,  but  not  for  less  than  10,OOOJ.  A.  under  the  belief  that 
the  property  would  produce  at  the  least  that  sum,  proceeded  to  dis- 
pose of  it  in  fractional  specified  sums  for  the  benefit  of  B.  and  other 
persons ;  and  after  payment  of  those  legacies,  he  directed  his  trus- 
tees to  invest  the  "  overplus"  monies  arising  from  the  sale  in  the 
public  funds  for  the  equal  benefit  of  C.  and  D.  A.  afterwards  made 
a  general  residuary  disposition  of  his  property.  The  lands  were 
sold  for  less  than  7000Z.  under  a  decree ;  and  one  of  the  questions 
was,  as  to  the  interest  which  C.  and  D.  took  7  If  they  took  in  the 
character  of  residuary  legatees  of  the  fund,  they  would  be  entitled 
to  nothing,  as  there  was  not  any  surplus  ;  but  if  as  particular  specific 
legatees  with  the  others,  then  they  would  be  entitled  to  participate 
in  the  fund  with  such  other  legatees,  in  the  proportions  intended,  if 
the  property  had  produced  10,OOOL  (proportions  intended,  which 
amounted  to  2200Z.)  and  to  be  .paid  what  should  appear  to  be  owing 
on  that  sum,  after  abating  with  their  specific  co-legatees :  and  Sir 
William  Grant,  M.  R.  was.  of  opinion,  that  C.  and  D.  were  so  enti- 
tled, since  the  testator  assumed  that  he  had  10,OOOZ.  to  distribute, 
and  made  distribution  on  that  supposition  ;  meaning,  however,  that 
if  there  had  been  an  excess  of  the  fund,  C.  and  D.  should  have  it. 
His  Honour,  therefore,  upon  intention,  collected  from  the  context  of 
the  will,  restrained  the  general  import  of  the  word  "  overplus,"  to 
the  meaning  of  a  certain  sum  remaining  of  an  ascertained  fund, 
after  taking  out  of  it  the  other  sums  specifically  given,  and  consi- 
dered that  all  the  legatees  were  intended  to  have  certain  defined 
parts  or  proportions  of  it,  by  whatever  words  they  were  given. 

We  may  remark,  that  of  the  last  two  cases,  the  first  is  an  authori- 
ty, that  a  legatee  of  part  of  a  specific  fund  given  to  him  in  the  form 
of  residue,  the  supposed  amount  of  which  residue  is  named,  will, 
nevertheless,  take  in  a  character  of  residue,  whatever  excess  there 
may  be  beyond  the  specified  sum ;  and  the  second,  is  an  authority 
that  whether  the  sum  be  mentioned  or  not,  if  the  fund  have  been 
erroneously  estimated,  and  is  therefore  unable  to  answer  in  full,  all 
the  specific  dispositions  made  of  it,  a  legatee  in  form  residuary,  will 
be  considered  particular,  and  entitled  to  a  share  of  the  property, 
(estimated  at  what  would  have  been  his  proportion  if  the  fund  had 
been  of  the  amount  supposed,)  after  abating  with  his  co-legatees. 

SECT.  V.    The  rights  of  SPECIFIC  LEGATEES  against  the 
EXECUTORS. 

If  a  legacy  be  of  a  silver  cup  or  a  jewel,  and  it  be  in  pledge  at 
the  testator's  death,  the  legatee  has  a  right  to  call  upon  the  execu- 
tor to  redeem  it,  and  deliver  it  to  him  ;(m)  and  so  it  is  by  the  civil 
law.(w) 

So  also  if  the  bequest  were  of  specific  stock,  and  it  happen  to  be 
sold  by  the  executor,  when  there  was  no  necessity  for  the  sale  to 
pay  debts,  the  equity  of  the  legatee  is  to  have  the  stock  replaced 
according  to  its  value  at  the  end  of  a  year  next  after  the  testator's 

(0  18  Ves.  463.        (rri)  2  Bro.  C.  C,  113.        (n)  Swinb.  pt.  7  sect.  20.  p.  548. 


230  Rights  of  Specific  Legatees,  [Cn.  IV. 

death,  since  the  fund,  if  not  sold,  was  then  transferable  to  the  lega- 
tee, (o) 

In  Chaworth  v.  Beech,(p)  a  specific  legacy  of  a  note  for  8000f. 
was  given  to  B.  The  amount  was  paid  into  Court,  pursuant  to  an 
order,  in  a  cause  then  depending  about  six  years  before  this  suit; 
and  the  money  was  laid  out  in  three  per  cent  consols.  In  the  first 
case  the  legacy  was  considered  general,  a  mistake  corrected  in  the 
present.  The  question  was,  whether  B.  was  entitled  to  the  sum  due 
upon  the  note,  or  to  the  stock  purchased  with  it "?  And  Lord  Mvan- 
ley,  M.  R.  declared,  that  B.  was  entitled  to  the  sum  due  upon  the 
note  at  the  time  it  was  paid  into  Court,  with  interest  at  four  per  cent 
from  that  period.  And  in  answer  to  what  was  insisted  to  the  con- 
trary, viz.  that  B.  was  only  entitled  to  the  stock  purchased ;  "  That," 
(said  his  Honour,)  "  would  be  the  greatest  injustice  to  B.  for  she  had 
a  right  to  the  specific  legacy ;  and  if  the  assets  did  not  want  it,  she 
had  a  right  to  have  it  delivered  up.  She  was  not  bound  to  lay  it 
out  in  the  funds,  but  if  she  had  so  done  she  would  have  a  right  to 
the  rise  and  be  liable  to  the  fall.  Instead  of  that,  the  executors  hav- 
ing insisted  that  it  should  not  go  out  of  Court,  it  was  paid  in  and 
laid  out  in  stock."  The  Court,  therefore,  decreed,  as  before  stated ; 
and  that  B.  was  not  obliged  to  take  the  stock  which  had  become 
depreciated  in  value. 

/"  Upon  the  same  principle,  if  a  horse  were  specifically  given,  which 
'  the  executor  refused  to  deliver,  lest  there  should  be  a  deficiency  of 
assets  to  pay  debts,  and  having  used  and  worked  the  horse  a  consi- 
derable time,  he  afterwards  offered  to  deliver  him  to  the  legatee ; 
the  latter  may  insist  upon  the  valite.  Or  if  the  horse  had  been  un- 
necessarily sold,  and  the  proceeds  applied  in  payment  of  debts,  the 
legatee  would  be  entitled  to  the  value  of  the  animal,  with  interest, 
from  the  moment  it  was  so  disposed  of. (</) 

-  It  may  be  considered  as  settled,  that  after  a  decree  obtained  in  a 
suit  for  the  administration  of  assets,  the  Court  will  not  only  restrain 
executors  from  selling(r)  or  applying  specific  legacies  in  discharge 
of  debts,  but  enjoin  creditors  from  proceeding  at  law  against  the  ex- 
ecutors,^) upon  the  principle  that  the  assets  are  to  be  administered 
in  equity,  and  no  delay  or  injury  can  arise,  since  the  funds  will  be 
properly  applied  under  the  eye  of  the  Court ;  and  if  the  plaintiff 
neglect  to  prosecute  the  decree,  a  defendant  or  a  creditor,  who  had 
proved  his  debt  before  the  Master,  will  be  permitted  to  do  so.(t)  So 
far  the  law  and  its  principle  are  clear. 

But  it  may  happen  that  specific  legacies,  if  disposed  of,  may  admit 
of  no  adequate  compensation  to  the  legatees,  as  of  family  pictures, 
&c.;  and  that  an  executor,  from  malicious  motives,  may  be  desirous 
and  intend  to  apply  a  specific  legacy  to  pay  debts,  although  the 
general  assets  may  be  sufficient  to  satisfy  all  demands.  And  for  the 
purpose  of  affording  a  pretext  for  such  a  procedure,  he  may  in  col- 
lusion with  a  creditor,  induce  such  creditor  to  bring  an  action,  and 

(0}  Morley  v.  Bird,  3  Ves.  629.       (fi)  4  Ves.  556.  563.  567.      (?)  4  Ves.  563. 

(r)  See  Moseley's  Rep.  p.  376.  («)  Kenyon  v.  Worthington,  2  Dick.  668. 
Brooks  v.  Reynolds,  1  Bro.  C.  C.  183  Goatev.  Fryer,  3  Bro.  C.C.  23.  Paxtonv. 
Douglas,  8  Ves.  520.  Perry  v.  PhUifis,  10  Ves.  39,  40.  Gil/tin  v.  Lady  South- 
amfiton,  18  Ves.  469.  Jackson  v.  Leaf,  1  Jac.  &  Walk.  229. 

(0  Powell  v.  Wall-worth,  2  Madd.  183.  Sims  v.  Ridge,  3  Meriv.  458. 


SECT.  VI.]     against  the  prior  Tenants  for  Life.  231 

then  pretend  that  he  was  under  the  necessity  of  paying  the  debt 
with  the  specific  funds  as  the  only  property  in  his  possession  with 
which  he  could  discharge  the  demand.  In  the  absence  of  authority, 
it  may  be  presumed,  that  in  the  first  case  a  court  of  equity  will  re- 
strain the  executor  from  acting  contrary  to  his  duty,  and  in  opposi- 
tion to  the  testator's  intention  ;  and  that  in  the  second,  the  Court 
will  not  only  enjoin  the  executor  from  disposing  of  the  specific  lega- 
cies, but  will  also  restrain  the  creditor,  even  before  decree,  from  re- 
ceiving satisfaction  out  of  them,  in  consequence  of  legal  proceedings 
begun  and  continued  in  fraudulent  collusion  with  the  executor. (u) 
It  is  however  clear,  that  the  Court  will  give  such  directions  to  the 
executor  as  may  be  necessary  for  preserving  the  specific  property  to 
the  legatees ;  and  which  was  done  by  Lord  Eldon  in  the  case  below 
referred  to.(x) 

SECT.  VI.  We  shall  lastly  proceed  to  consider  the  Rights  of 
Specific  Legatees  of  Goods  and  Chattels  in  remainder,  against 
those  entitled  to  them  for  life. 

1.  When  an  inventory  or  security  will  be  required. 

In  instances  where  parts  of  a  testator's  personal  estate  are  specifi- 
cally bequeathed  for  life,  with  an  executory  limitation  after  the 
death  of  the  tenant  for  life  to  another  person ;  the  first  legatee  must 
sign  and  deliver  to  the  second  an  inventory  of  the  chattels,  express- 
ing that  they  are  in  his  custody  for  life  only,  and  that  afterwards 
they  are  to  be  delivered  and  remain  to  the  use  and  for  the  benefit 
of  the  second  legatee. (y)  But  it  seems  to  have  been  the  ancient 
practice  of  the  Court  of  Chancery  to  require  the  person  entitled  to 
the  partial  interest,  to  give  security  to  or  for  the  benefit  of  the  lega- 
tee appointed  to  succeed  him. (2)  The  practice,  however,  became 
gradually  altered  as  above  stated,  upon  a  conviction,  that  requiring 
from  the  first  legatee  only  an  inventory  of  the  property  specifically 
bequeathed,  was  attended  with  more  equal  justice  to  both  legatees. 
Besides,  as  the  testator  had  thought  proper  to  entrust  the  first  lega- 
tee with  a  personal  use  of  the  articles  for  life,  it  was  not  for  the 
Court  to  destroy  that  confidence,  except  under  special  circum- 
stances. But  if  such  circumstances  be  shown  and  proved  as  would 
make  it  dangerous  to  trust  the  chattels  in  the  hands  of  the  first  le- 
gatee, without  taking  a  sufficient  security,  as  in  the  instance  of  in- 
solvency, such  security  will  be  required.  In  Foley  v.  Burnell,(a) 
Lord  Thurlow  thus  expressed  himself:  "  The  cases  as  to  tenant  for 
life  giving  security  for  the  goods,  have  been  over-ruled,  and  the  Court 
now  demands  only  an  inventory;  which  is  more  equal  justice,  since 
there  ought  to  be  danger  in  order  to  require  security." 

2.  Effect  of  renewal  of  leases  by  specific  devisees  for  life. 

It  has  occurred  that  devisees  of  partial  interests  in  terms  of  years 
have  renewed  them,  and  questions  have  arisen  between  those  de- 
visees and  the  persons  appointed  by  the  will,  to  take  them  in  re- 
mainder, upon  the  subject  of  the  beneficial  interests  in  the  new 
leases.  But  the  following  rule  appears  to  be  firmly  settled,  viz.  that 


(«)  Alsager  v.  Rowley,  6  Ves.  750.       (x)  Clarke  v.  Lord  Ormonde,  about  Afiril 
1821,  since  reported,  1  Jacob.  108.  (y)  3  P.  Will  336.  1  Atk.  471.  2  Atk.  82. 

(z)9  Mod, 93.  2  Vern.  453.      (a)  lBro.C.C.  279.  Scsee^owsv.  Noble,  2Vern.249. 


232  Rights  of  Legatees  in  remainder,  [Cn. IV. 

if  a  term  for  years  be  given  to  A.  for  life,  with  an  executory  devise 
to  B.  after  ASs  death,  and  A.  surrender  the  old  and  take  a  new  lease, 
A.  will  hold  the  renewed  lease  upon  the  trusts  of  the  old  one ;  upon 
the  principle,  that  it  being  manifestly  the  intention  of  the  testator, 
in  giving  a  renewable  interest,  that  the  renewed  interest  should 
enure  for  the  benefit  of  all  the  persons  interested  in  the  old  term,  a 
court  of  equity  will  not  permit  that  intent  to  be  defeated.  It  there- 
fore holds  A.  to  be  a  trustee  of  so  much  of  the  renewed  term  as 
shall  remain  after  his  death,  for  the  benefit  of  B.(b) 

So  it  will  be  if  the  testator  were  only  tenant  from  year  to  year, 
and  bequeathed  the  farm  to  A.  and  B.  successively  as  above,  and  A. 
procured  a  lease  of  it  for  a  term  of  years;  because  the  testator 
having  an  interest  at  his  death,  which  he  was  entitled  to  dispose  of,(c) 
the  first  legatee  is  not  allowed  to  take  the  new  lease,  except  upon 
the  trusts  of  the  will ;  the  case  being  in  principle  the  same  as  that 
before  proposed.  And  it  is  indifferent  whether  the  renewal  be  made 
by  the  tenant  for  life,  or  by  an  executor  or  trustee. (d) 

Thus  in  James  v.  Dean,(e)  a  testator  gave  "  all  the  estate  and  in- 
terest" he  should  have  at  his  death  in  certain  leasehold  premises 
(describing  them)  to  A.  for  life,  remainder  to  B.,'C.  and  D.  The 
lease  under  which  he  held  the  estate  expired  some  time  before  his 
death,  but  he  continued  in  possession,  and  became  tenant  from  year 
to  year  at  an  annual  rent.  A.  was  executrix  as  well  as  tenant  for 
life,  and  obtained  a  new  lease;  and  the  questions  were  two;  1st, 
whether  the  testator  had  at  his  death  such  an  interest  as  could  and 
did  pass  by  his  will ;  and  2dly,  supposing  that  to  be  so,  whether  it 
was  such  an  interest  as  precluded  ASs  renewing  for  her  sole  and  ex- 
clusive benefit  1-  And  Lord  Eldon  determined  both  questions  in  the 
affirmative,  upon  the  principles  before  stated. 

3.  When  tenant  for  life  renews  a  lease  bequeathed  to  him,  and  to 
others  in  remainder,  to  which  new  interest  a  court  of  equity,  as  we 
have  seen,  attaches  the  trusts  of  the  old  lease  ;  the  remainder  men 
have  a  right  to  call  upon  the  tenant  for  life  to  contribute  so  much  of 
the  fine  as  is  proportionate  to  his  actual  enjoyment  of  the  new  term, 
the  old  rule  of  contributing  one-third  of  the  whole  being  now  ex- 
ploded^/) The  following  instance  will  show  what  are  the  condi- 
tions upon  which  the  persons  in  remainder  will  be  entitled  to  the 
trust  of  the  renewed  lease.  Suppose  A.  to  be  a  tenant  for  life  of  a 
term  under  a  devise  as  above,  and  to  renew  for  twenty-eight  years, 
when  twelve  of  the  old  term  were  unexpired.  Suppose  also  A.  to  have 
enjoyed  nine  years  of  the  new  term,  after  the  expiration  of  the  twelve 
years,  residue  of  the  original  term.  Lord  Thurlow  declared,  that  the 
Master  ought  to  take  the  sum  paid  by  A.  for  renewal  of  the  lease,  as 
the  value  of  the  term  purchased,  viz.  the  term  of  twenty-eight  years, 
to  commence  at  the  end  of  the  twelve  years.  That  the  Master  should 
then  consider  the  value  of  the  term  of  nine  years  after  the  existing 

(ft)  Taster  v.  Mariott,  Ambl.  668.  Ro<we  v,  Chichester,  ibid.  715.  Pickering 
v.  Vo-wles,  1  Bro.  C.  C.  197. 

(c)  Doe  v.  Porter,  3  Term.  Rep.  13.  (d}  3  Meriv.  196. 

(e)  11  Ves.  383.  395.  and  see  Randall  v.  Russell,  3  Meriv.  190.  196.  also  1  Ball 
c  Beat.  46.    Mulvany  v.  Dillon,  ibid.  409.  411.     Wmslow  v.  Tighe ,  2  Ball  &  Beat. 
,'£*•    £%re  v'  D°frhtn>  ibid.  290.  298.    Hardman  v.  Johnson,  3  Meriv.  347.  , 
(/)  See  White  v.  Wftite,  9  Ves.  554. 


SECT.  VI.]         against  prior  Tenants  for  Life.  233 

term,  and  what  the  term  of  nineteen  years  after  the  existing  term,  and 
the  nine  years  was  worth,  the  latter  being  the  proportion  to  be  paid 
by  the  remainder-man. 

With  respect  to  interest  to  be  allowed  to  A.  on  the  fine  paidm^ros- 
pectu,  i.  e.  for  the  enjoyment  of  the  new  term  after  the  twelve  years  of 
the  old  would  have  expired,  and  during  which  period  A.  would  have 
been  entitled  to  enjoy  the  estate,  if  no  renewal  had  been  made,  Lord 
Thurlow  declared,  that  as  the  value  of  the  lease  was  calculated  on  com- 
pound interest,  A.  should  be  allowed  compound  interest  at  four  per  cent, 
to  be  computed  upon  the  proportional  value  of  the  nineteen  years  term 
to  the  whole  expense  of  renewal,  and  up  to  the  death  of  A.;  from 
which  time  as  .#.'«  legal  personal  representatives  only  stood  in  rela- 
tion to  the  remainder-man  as  common  creditors,  they  were  merely 
entitled  to  simple  interest.  Which  arrangement  his  Lordship  con- 
sidered to  be  the  justice  of  the  case  ;  since  as,  on  the  one  hand,  A. 
could  not  renew  for  his  own  benefit,  so  on  the  other,  the  remainder- 
man should  not  be  permitted  to  take  the  renewal  at  ASs  expense. (g) 
And  it  is  to  be  observed,  that  there  is  no  difference  in  relation  to  this 
subject  between  a  renewable  term  for  years,  and  a  renewable  lease 
for  lives. (h) 

The  same  rule  of  construction  appears  to  apply,  but  in  a  different 
manner,  when  the  renewable  leasehold  estate  is  bequeathed  to  trus- 
tees, in  trust  for  A.  for  life,  remainder  to  B.  for  life,  remainder  to  C.: 
with  a  direction  to  renew  and  pay  the  fine  out  of  the  rents  and  profits. 
It  seems  to  be  the  duty  of  the  trustees,  in  such  a  case,  to  provide  an 
accumulating  fund  out  of  the  rents  and  profits  during  the  enjoyment 
of  A.  to  answer  the  renewals  to  be  made  in  his  time  ;  and  to  pursue 
the  same  conduct  during  the  life  of  B.  If  the  trustees  omit  to  renew 
at  proper  times  during  the  lives  of  A.  and  B.  -so  as  that  the  fine  for 
renewing  become  greatly  enhanced  upon  C.'s  succeeding  to  the 
estate,  they  (the  trustees)  will  be  personally  liable  to  C.;  and  they 
will  be  entitled  to  resort  to  the  assets  of  A.  and  B.  for  repayment. 
But  suppose  B.  to  have  been  a  married  woman,  the  wife  of  A.  to 
whom  therefore  no  neglect  or  misconduct  could  be  imputed  for  non- 
renewals  in  ASs  life-time,  her  estate  would  be  only  answerable  to  the 
trustees  for  so  much  of  the  rents  of  the  leasehold  estate,  as  she  after 
A?s  death  received,  and  which  ought  to  have  been  appropriated  as 
a  fund  for  a  renewal,  and  not  for  the  excess  of  the  fine  occasioned 
by  not  renewing  at  the  usual  and  proper  times  during  A?s  life.  The 
following  case,  as  finally  determined  by  Lord  Eldon  on  appeal,  esta- 
blished the  foregoing  observations  : 

In  Lord  Montford  v.  Lord  Cadogan  first  decided  by  Sir  William 
Grant,(i)  a  renewable  lease  of  forty  years  was,  by  marriage  settle- 
ment in  1772,  vested  in  trustees,  with  the  benefit  of  renewal,  to  hold 
for  the  remainder  of  the  original  term,  and  for  all  renewed  terms  in 
trust  for  Lord  Montford  till  the  marriage.  Afterwards  the  trustees 
were  directed  to  pay,  with  the  rents,  issues  and  profits,  the  fines  and- 
expenses  of  renewal  and  the  costs  of  executing  the  trusts  ;  and  after 

(g)  Nightingale  v.  Lawson,  1  Bro.  C.  C.  443.  Ed.  by  Belt,  1  Cox,  181.  ai 
ord  Elaon'a  observations  in  White  v.  White,  9  Ves.  558. 


(A)  9  Ves.  559.  2  Bro.  C.  C.  243. 


(j)  17  Ves.  485^  et  vide  Lord  Miteington  v,  Earl  of  Mulgrave,  3  Mad.   491. 

Ma  " 


5  Mad.  471.  S.  P. 

VOL.  I.  G   g 


234  Sights  of  Legatees  in  remainder,         [Cn.  IV. 

payment  of  such  rent,  costs,  charges  arid  expenses,  and  performance 
of  the  covenants,  &c.  the  premises  were  to  be  holden  by  the  trus- 
tees in  trust  to  permit  Lord  Montford  to  receive  the  rents  for  life, 
and  in  like  manner  to  suffer  Lady  Montford  (his  intended  wife)  if  she 
were  the  survivor  to  take  the  rents  for  life ;  and,  after  the  death  of 
the  survivor,  to  raise  by  mortgage  or  sale  any  deficiency  of  younger 
children's  portions  provided  by  the  deed.  And,  if  there  should  be  a 
residue  of  the  leasehold  estate,  in  trust  to  permit  his  first  son  to  re- 
ceive the  rents  until  he  attained  twenty-one,  and  then  to  assign  the 
estate  to  him.  The  lease  was  renewable  at  the  expiration  of  every 
fourteen  years;  and  Lord  Montford  died  1799,  after  enjoying  the 
estate  for  twenty-seven  years  ;  but  the  trustees  neglected  to  renew, 
and  permitted  his  lordship  to. receive  all  the  rents  during  his  life. 
Lady  Montford  survived  him,  and  was  in  possession,  as  the  second 
tenant  for  life,  from  1799  to  1808,  when  she  died,  and  was  succeed- 
ed by  the  plaintiff,  the  only  issue  of  the  marriage.  The  lease  ought 
to  have  been  renewed  in  1785  and  in  1800  ;  and  it  appeared  that 
after  the  renewal  in  1786  ought  to  have  been  made,  Lord  Montford 
assigned  his  life  estate  to  Lord.  Howe.  Under  those  circumstances 
Sir  William  Grant  decided  the  following  points.  First,  that  the 
present  was  a  case  of  contribution.  Secondly,  that  Lord  Montford's 
assets,  if  sufficient,  were  first  applicable  to  make  good  so  much  of 
the  fine  as  corresponded  with  the  period  of  his  enjoyment.  Thirdly, 
that  Lady  Montford  his  widow,  the  second  tenant  for  life,  was  in 
like  manner  answerable  for  the  period  of  her  possession ;  and  that 
the  residuary  rents  during  her  life  were  liable  to  be  impounded,  to 
make  good  the  demand  against  her.  Fourthly,  that  the  trustees  were 
answerable  for  the  deficiency  of  any  of  those  funds.  And  lastly, 
that  the  trustees,  having  in  breach  of  their  duty  permitted  the  whole 
of  the  rents  to  be  received  by  Lord  Montford,  could  not  call  upon 
Lord  Howe,  his  assignee,. as  standing  in  his  place,  for  a  contribution, 
or  to  exempt  them  from  any  part  of  their' responsibility. 

The  last  decree  was  partially  confirmed  and  in  part  altered  by 
Lord  Eldon,  by  whom  it  was  considered  on  appeal. (k)     The  liabili- 
ty of  the  trustees  and  the  exemption  of  Lord  Hoiue  were  assented  to 
by  him,  but  as  a  larger  fine  for  a  renewal  was  required  in  consequence 
of  the  omission  of  the  trustees  to  renew  for  twenty-eight  years,  his 
Lordship  declared,  that  Lady  Montford's  estate  was  not  liable  to  the 
trustees  for  such  excess  ;  since  as  a  married  woman  she  was  not 
chargeable  with  any  default  of  renewal  during  her  marriage  ;  and 
his  Lordship  further  observed,  that  Lady  Montford,  in  "  1799,  was 
entitled  by  the  settlement  to  possession  of  this  leasehold  estate,  under 
a  lease  renewed  in  1786  for  fourteen  years,  in  addition  to  twenty- 
six  years  then  remaining  unexpired,  with  a  fund  accumulating  for 
the  fine  to  be  paid  on  the  next  r'enewat  in  1800.     If,  therefore,  this 
was  to  be  thus  understood,  that  as  Lord  Montford  enjoyed  from  1772 
to  1779,  and  Lady  Montford  from  1799  to  the  year  1808,  when  a 
exceeding  3000Z.  was  paid,  that  sum  was  to  be  remembered  as 
oetween  his  and  her  estate  in  this  proportion,  viz.  his  estate  was  to 
be  charged  according  to  the  amount  of  the  rents  between  1772  and 
1799,  and  she  was  to  pay  according  to  the  rents  from  1799  to  1808.'* 

(*)  19  Ves.  635. 


SECT.  VI.]         against  prior  Tenants  for  Life.  235 

In  those  respects  the  original  decree  was  altered  with  an  additional 
declaration  that  Lord  Montford's  estate  alone  was  answerable  to  the 
trustees  for  the  increase  of  the  fine  required  after  a  lapse  of  twenty- 
eight  years.(/) 

The  last  case  appears  to  have  settled  the  manner  in  which  fines 
for  renewals  are  to  be  provided,  when  they  are  directed  to  be  paid 
by  trustees  out  of  the  rents  and  profits  of  the  estate  assigned  or  de- 
vised in  trust  for  persons  in  succession.  It  seems  very  difficult  to 
reconcile  with  it  the  case  of  Mian  v.  Backhouse. (ni)  There  lease- 
hold estates  held  for  three  lives  were  vested  in  trustees  to  the  use  of 
James  Lilian  for  life,  remainder  to  George  Allan  the  elder  for  life, 
remainder  to  trustees  for  George  Mian  the  younger  for  life,  remain- 
der in  trust  fbr.his  first  and  other  sons  in  tail  male.,  with  remainders 
over ;  and  then  followed  the  direction  to  the  trustees  to  renew 
the  leases,  with  a  declaration  that  the  fines,  &c.  should  be  raised 
and  paid  out  of  the  rents  and  profits  of  any  other  part  of  his  freehold 
estate,  &c.  (also  vested  in  the  trustees  :)  and  he  declared  that  the 
renewed  leases  should  be  made  upon  the  same  trusts  as  before  ex- 
pressed of  his  freehold  and  copyhold  estates.  James  Mian  continu- 
ed in  possession  from  the  year  1785  to  January  1790,  when  he  died, 
and  was  succeeded  by  George  Mhih  the  elder,  who  continued  in 
possession  from  the  latter  periodjptil  his  death  in  May,  1808  ;  and 
then  George  Mian  the  younger  (the  last  tenant  for  life)  entered  as 
next  in  remainder.  During  the  •possession  of  George  Allan  the  eld- 
er in  1804,  one  of  the  lives  dropped;  and  in  1808  another  fell  in, 
upon  which  George  Mian  the  younger  applied  to  the  Court  for  its 
opinion  and  direction  as  to  the  raising  the  fines  for  the  renewals. 
And  Sir  Thomas  Plumer,  M.  R.  then  V.  C.  declared  that  the  fines 
were  to  be  raised  by  mortgage  or  sale,  and  that  George  Mian  the 
younger,  should  contribute  in  proportion  to  the  advantage  he  deri- 
ved from  the  renewals. 

According  to  that  decree,  James  Mian  and  George  Mian  the  eld- 
er were  permitted  to  receive  the  whole  of  the  rents,  without  contri- 
buting any  part  of  them  to  the  renewals  which  had  become  necessary-. 
The  present  was  the  case  of  a  trust,  and  the  trustees  were  directed 
to  raise  the  fines  for  renewals  out  of  the  rents  and  profits.  Then 
according  to  Lord  Montforjl  v.  Lord  Cadogan,  before  stated,  (and 
there  is  no  difference  between  a  renewable  term  for  year's  and  a 
lease  for  lives  renewable, )(n)  the  trustees  ought  to  have  provided  a 
fund  out  of  the  annual  rents  and  profits  from  the  year  1785,  sufficient, 
upon  a  fair  calculation  from  the  usual  tables  of  the  probable  con- 
tinuance of  the  existing"  ^lives,  to  answer  the  fine  upon  renewal  on 
the  dropping  of  one  of«them.1  By  this  method,  all  the  tenants  for 
life  would  have  received  equal  benefits  under  the  trust,  as  must  have 
been  intended  by  the  testator.  •  In  that 'case  probably  there  Would 
have  been  no  occasion  to  resort  to  a  mortgage  or  sale,  which  could 
not  have  been  in  contemplation  of  the  testator,  as  he  did  not  confine 
the  raising  of  the  fines  to  the  rents  of  the  leasehold  estates,  but  in- 
cluded in  the  trust  the  rents  and  profits  of  his  other  real  property. 
The  rents  of  all  his  real  estates  were  included  in  the  trust  to  raise 
the  fines,  which  clearly  showed  his  intention,  that  by  rents. and  pro- 

(/)  19  Ves.  640.        (m)  2  Ves.  &  Bea.  65.        (n)  By  Lord  Eldon,  9  Ves.  559. 


236  Rights  of  Legatees  in  remainder)          [Cn.  IV. 

fits  he  intended  annual  rents  and  profits,  and  which  were  applicable 
to  raise  the  fines  before  any  part  of  the  corpus  of  the  estates. 

Tin's  seems  to  have  been  the  foundation  of  Lord  Thurlow's  decree 
in  Stone  v.  Theed,(o)  in  which  the  testator  devised  to  trustees,  a 
leasehold  estate  which  he  held  for  lives,  together  with  all  his  other 
real  property,  and  the  residue  of  his  personal  estate,  upon  trust,  out 
of  the  rent,  and  profits  of  the  real,  and  the  interest  and  produce  of 
the  personal  estate,  to  pay  an  annuity  to  Jl.  for  life,  and  then  to 
pay  the  rents  and  profits,  and  interest  and  produce,  to  B.  for  life, 
and  from  that  time  to  pay  an  annuity  to  C.  for  life ;  and  on  further 
trust  to  pay  the  remainder  of  the  rents  and  profits,  interest  and  pro- 
duce, to  the  children  of  C.  for  maintenance,  and  to  convey  to  them 
the  real,  and  pay  the  principal  of  his  personal  estate,  at  their  ages 
of  twenty-one ;  but  if  there  should  be  no  child  or  children,  or,  there 
being  such,  all  of  them  should 'die  under  twenty-one,  remainder  to 
the  plaintiff,  Mrs.  Stone.  Then  followed  a  direction  to  the  trustees 
to  renew  the  lease  when  necessary,  and  to  place  at  interest  the 
overplus  rents  of  his  real,  and  also  his  personal  estate.  The  testator 
died  in  1778.  B.,  the  tenant  for  life,  died  in  August  1780;  when 
the  plaintiff,  Mrs.  Stone,  succeeded  to  the  estate.  In  May  1780  a 
life  dropped,  and  in  January  1781  the  trustees  renewed,  and  paid  a 
fine  of  222/.  175.  lOd.  Another  life  dropped  in  1786,  and  in  March 
1787  a  fine  on  renewal  was  paid  by  the  trustees;  which  sums  were 
satisfied  out  of  the  rents  and  profit's  of  the  aggregate  fund  of  real 
property  vested  in  them  for  the  purpose,  (the  personal  property  not 
being  productive.)  And  it  was  the  effect  of  Lord  Thurlow's  decree 
to  establish  those  payments :  his  Lordship  declaring  that  the  tes- 
tator's whole  property  was  made  a  general  fund  and  one  trust,  and 
that  the  trustees  were  to  use  the  whole  estate  according  to  the  will ; 
that  the  whole  fund,  the  rents  and  profits,  (the  personal  estate  not 
being  productive,)  must  pay  the  expenses  of  the  trust ;  and  that  the 
produce  of  the  whole  must  be  first  applied  to  the  purpose  of  the 
renewals. 

It  seems  a  consequence  from  the  last  case,  that  if,  in  Allan  v. 
Backhouse,  it  were  not  the  duty  of  the  trustees,  as  in  TuordMontford 
v.  Lord  Cadogan,  to  provide  out  of  the  rents  an  accumulating  fund 
for  renewals;  yet  before  a  mortgage  or  sale  of  the  leasehold  estates 
was  directed,  the  rents  and  profits  of  the  testator's  ot ter  estates  should 
have  been  first  applied,  which  appear  in  the  argument  to  have  been 
considerable ;  so  that  in  this  respect  the  two  cases  of  Stone  v.  Theed, 
and  Allan  v.  Backhouse,  do  not  agree.  Probably  the  following  may 
be  considered  the  rules  applicable  to  the  present  subject : 

First.  That  when  leaseholds  for  years  renewable  at  certain  periods, 
are  vested  in  trustees  for  persons  in  succession  for  life,  with  a  direc- 
tion to  renew  and  pay  the  fines  out  of  the  rents  and  profits,  such 
fines  ought  to  be  annually  provided  for  by  the  trustees  appropriating 
an  accumulating  fund  out  of  those  rents. 

Second.  That  the  principle  of  the  rule  seems  applicable  to  in- 
stances where  leaseholds  for  lives  are  so  devised;  the  calculation  of 
the  period  of  renewal  to  be  made  as  before  described,  the  tenants 
for  life  previous  to  such  renewal  being  entitled  to  any  excess  of  the 

(o)  2  Bro.  C.  C.  243. 


SECT.  VI.]         against  prior  Tenants  for  Life.  237 

accumulating  fund  in  the  event  of  a  renewal  not  being  necessary 
within  the  estimated  period,  and  consequently  obliged  to  contribute 
in  aid  of  that  fund  if  the  time  for  renewal  happen  within  the  above 
period.  But  that  if  a  renewal  became  necessary  within  a  week,  or 
a  very  short  time  after  the  death  of  the  testator,  so  as  that  the  fine 
cannot  be  paid  out  of  the  annual  rents,  it  is  presumed  that  neces- 
sity will  authorize  the  fine  to  be  raised  by  mortgage,  the  interest  of 
which  must  be  paid  by  the  tenants  for  life.  And, 

Third.  That,  when  not  only  the  leasehold  for  lives,  but  other  real 
estates,  are  devised  to  trustees  as  an  aggregate  fund  to  answer,  out 
of  the  rents  and  profits,  the  fines  for  renewing  the  leaseholds,  and 
the  fund  is  limited  in  succession  to  several  tenants  for  life,  the  whole 
of  the  rents  must  be  applied  in  performance  of  the  trust  before  any 
part  of  the  aggregate  fund  can  be  mortgaged  or  sold  for  the  purpose. 
But  supposing  the  rents  of  the  aggregate  property  in  the  hands  of 
the  trustees  to  be  sufficient,  and  the  leaseholds  for  lives  are  devised 
to  one  class  of  individuals,  and  the  other  estates  to  another  class,  it 
is  conceived  that  the  rents  ought  to  be  marshalled ;  i.  e.  the  rents  of 
the  leaseholds  and  the  rents  of  the  other  estates  ought  to  contribute 
pro  rata  in  satisfaction  of  the  demand. 

The  equities  of  specific  legatees  in  the  marshalling  of  assets  will 
appear  in  the  Fifteenth  Chapter. 


CHAPTER  V. 

Of  the  Ademption  and  Abatement  of  Specific  Legacies, 

SECT.  I.  Of  the  ADEMPTION  of  Specific  Legacies. 
1. — Of  stock. 
2. — Of  debts  or  securities. 
3. — Of  goods,  «^c. 
4. — 'Of  partnership  shares. 
5. — Of  leases  for  years  and  for  lives. 

SECT.  II.  ABATEMENT  of  Specific  Legacies. 
1. — Rule  upon  that  subject. 
2f. — As  to  abatement  amongst  several  legatees  of  the  same 

specific  fund, — And 
3. — Of  abatement  of  specific  devises  of  freehold  estates 

with  specific  legatees  of  chattels,  under  which 

head  are  considered  estates  pour  autre  vie. 
4. — As  to  abatement  of  Legacies  in  part  specific,  and  in 

part  general. 

SECT.  I.  Of  the  ADEMPTION  of  Specific  Legacies. 

IN  order  to  complete  the  title  of  the  specific  legatee  to  the  thing 
given,  it  must  be  in  such  condition  at  the  testator's  death  as  descri- 
bed in  his  will.  Such  is  the  general  rule,  subject  to  the  qualifica- 
tions after  mentioned. 

The  word  "  ademption,"  when  applied  to  specific  legacies  of  stock 
or  of  money,  or  securities  for  money,'  must  be  considered  as  synoni- 


238  Of  the  Jldemption  [Cn.  V. 

mous  with  the  word  "  extinction."  For  it  should  be  observed,  that 
if  stock,  securities,  or  money,  so  bequeathed,  be  sold  or  disposed  of, 
there  is  a  complete  extinction  of  the  subjects,  and  nothing  remains 
to  which  the  words  of  the  will  can  apply :(«)  for  if  the  proceeds  from 
such  sale  or  disposition  were  to  be  substituted  and  permitted  to  pass, 
the  effect  would  be  (as  expressed  by  a  learned  Judge)  to  convert  a 
specific  into  a  general  legacy. (6)  But  with  respect  to  general  lega- 
cies not  given  as  portions, (c)  the  rule  respecting  ademption  depends 
upon  different  considerations.  The  intention  of  the  testator  is  im- 
material in  the  ademption  of  specific  legacies,  because  the  subject 
being  extinct  at  the  death  of  the  testator,  there  is  nothing  upon 
which  the  will  can  operate;  but  it  is  otherwise  in  regard  to  general 
legacies  which  are  payable  out  of  the  general  personal  estate :  there 
the  question  whether  any  advancement  by  the  testator  in  his  life 
time  to.  the  legatee  shall  be  considered  an  ademption  or  in  substitu- 
tion of  the  bounty  given  by  the  will  must  depend  entirely  upon  the 
fact,  that  such  was  the  testator's  intention. 

It  follows  from  the  foregoing  observations,  that  a  distinction  is  to 
be  made  upon  the  present  subject  between  legacies  properly  spe- 
cific, and  legacies  in  their  natures  only  specific,  i.  e.  in  some  respects 
general,  and  in  others  specific  ;  instances  of  which  were  produced 
in  the  third  chapter ;  for  since  those  latter  legacies  do  not  depend 
upon  the  specific  fund  appropriated  for  their  payment,  the  extinc- 
tion of  it  cannot  adeem  such  bequests. (d)  It  is  now  proposed  to 
consider, — 

First,  The  ademption  of  legacies  that  are  regularly  specific ;  and, 
1.  Of  stock. 

It  may  be  considered  as  settled,  that  when  stock  is  specifically  be- 
queathed, and  it  does  not  wholly-,  or  does  only  in  part  exist  at  the 
testator's  death,  the  legacy  will  either  be  totally  or  partially  adeem- 
ed, as  the  case  may  be.  Suppose  then  A.  to  bequeath  to  B.  3000J. 
three  per  cent,  consols,  part  of  A's  stock  then  standing  in  his  name 
in  that  fund;  if  the  stock  should  not  be  so  found «it  A.'s  death,  the 
legacy  to  B.  will  be  wholly  or  in  part  adeemed,  according  to  the 
state  of  the  property,  (e) 

Thus  in  dshburner  v.  JWGuire,(f)  A.  bequeathed  to  the  follow- 
ing effect;  "To  B.  now  at  school  with  the  reverend,  &c.  my  capi- 
tal stock  of  1000Z.  in  the  India  company's  stock,  \vjHh  th'e  divi- 
dends," &.c.  The  fund  was  afterwards  sold  by  A. ;  and  Lord  Thur- 
low  determined,  after  a  review  of  all  the  preceding  cases,  that  BSs 
legacy  was  adeemed. 

The  principle  of  his  Lordship's  decree  was  that  before  stated,  viz. 
that  by  sale  of  the  specific  stock  the  legacy  was  annihilated,  and 
there  was  no  subject  to  which  the  description  of  the  bequest  would 
apply.  And  it  appears  from  Sir  John  Simeon's  note  of  the  subse- 
quent case  of  Badrick  v.  Stevens,(g)  that  a  testator's  intention  to 

(a)  3  Bro.  C.  C.  432.  Ed.  by  Belt.  (6)  9  Ves.  360. 

(c)  See  next  chapter.  (a")  Ambl.  568. 

(e)  See  Ashton  v.  Ashton,  Forrest.  152.    Evans  v.  Trififi,  6  Mad.  91. 

(/)  2  Bro.  C.  C.  108--114.  also  see  Sleech  v.  Thorington,  2  Ves.  sen.  561-564. 
Drink-water  v.  Falconer,  Ibid.  623.  and  Humphreys  v.  Humphreys,  2  Cox,  184. 
severally  stated  ante,  pp.  164.  168.  163.  Birch  v.  Baker,  Mose.  373. 

(g)  Stated  by  Mr.  Belt  to  that  case,  3  Bro.  C.  C.  432.  And  see  2  Cox,  182. 


SECT.  I.]  of  Specific  Legacies.  239 

adeem,  or  not  to  adeem  the  specific  legacy,  formed  no  considera- 
tion in  such  a  case,  for  (said  his  Lordship)  "the  discharge  of  a  debt 
(specifically  bequeathed)  is  not  strictly  an  ademption  which  depends 
upon  the  intention  to  adeem ;  but  it  is  an  extinguishment  of  the  le- 
gacy by  annihilation  of  the  subject  liable."  This  being  so,  let  us 
suppose  the  occurrence  of  a  case  where  the  testator  sold  the  stock 
he  had  specifically  bequeathed  ;  by  which  act  the  legacy  became 
extinct ;  and  that  he  afterwards  purchased  stock  in  the  same  fund 
sufficient  to  answer  the  specific  bequest.  Would  the  legatee  be  en- 
titled to  the  stock  so  purchased  in  lieu  of  that  which  was  bequeath- 
ed to  him  and  had  been  annihilated  9  The  opinions  of  some  great 
Judges  have  been  expressed  in  favour  of  the  legatee .;(h)  but  there  is 
no  decision  upon  the  subject.  The  case  of  Partridge  v.  Partridge 
referred  to  in  the  last  note  and  the  only  one  that  bears  any  resem- 
blance to  an  authority,  is  that  of  a  bequest  not  properly  specific,  but 
a  legacy  in  its  nature  only  specific  (before  described, )(i)  and  there- 
fore does  not  fall  within  the  present  inquiry.  Considering,  then,  this 
question  upon  the  principles  before  mentioned,  it  seems  difficult  to 
reconcile  them  with  the  opinions  above  referred  to.  For  when  a 
testator  bequeaths  particular  stock  which  he  possessed  at  the  date 
of  his  will,  and  not  at  the  period  of  his  death,  it  is  not  easy  to  con- 
ceive how  stock,  which  he  afterwards  purchased,  can  pass  in  lieu  of 
that  identical  stock  of  which  he  had  by  express  words  of  reference 
specifically  disposed.  The  reasons  against  the  construction  are 
these :  first,  that  the  testator  only  intended  to  dispose  of  the  identi- 
cal stock  which  he  possessed  whenhe  made  his  will.  Secondly,  that 
the  terms  of  the  bequest  are  so  framed  as  to  extend  to  no  other  stock. 
Thirdly  that  the  testator's  intention  to  pass  to  the  legatee  the  after 
purchased  stock,  in  lieu  of  that  disposed  of,  cannot  avail,  since  there 
are  no  words  in  the  will  bequeathing  it  to  him.(&)  Fourthly,  that  a 
contrary  construction  would  be  inconsistent  with  the  nature  of  a 
specific  legacy,  in  allowing  compensation  for  the  destruction  or  non- 
existence  of  the  thing  specifically  given  ;  and  it  would  confound  the 
distinction  between  a  specific  legacy,  referring  to  the  date  of  the 
will,  and  one  expressly  referring  to  the  testator's  death.  And  lastly, 
that  cases  of  the  present  description  differ  from  those  where  the 
stock  or  fund,  remaining  the  same,  or  the  same  in  substance,  was 
held  to  pass  to  the  legatee.  For  these  reasons,  it  is  presumed,  that 
when  stock,  which  the  testator  had  at  the  time  he  made  his  will,  is 
specifically  bequeathed,  and  is  sold  by  him,  the  legacy  is  irretrieva- 
bly gone,  and  that  the  legatee  is  not  entitled  to  the  benefit  of  any 
stock  which  the  testator  may  have  purchased  in  the  same  fund  after 
the  date  of  his  will.(Z) 

From  the  view  which  has  been  taken  of  the  ademption  of  spe- 
cific legacies,  it  follows  that  the  intention  of  a  testator  is  not  a  ne- 
cessary ingredient  in  the  transaction  ;  and  that  the  only  thing  to  be 
ascertained  is,  whether  the  stock,  of  which  the  testator  was  possess- 
ed when  he  made  his  will,  existed  at  the  time  of  his  death  in  the 

(A)  By  Lord  Talbot  in  Partridge  v.  Partridge,  Forrest.  227,  by  Lord  Hard- 
tuicke,  in  Avelyn  v.  Ward,  1  Ves.  sen.  426,  and  by  Sir  Thomas  Seivell,  M.  R.  in 
Drinkivater  v.  Falconer,  2  Ves.  sen.  625. 

(0  Ante,  p.  150.         .  '  (*)  2  Madd.  281.  (/)  Vide  infra,  sub.  sec.  3. 


240  Of  the  Ademption  [Ca.  IV. 

state  described  by  such  will ;  and  if  not,  then  that  the  legacy  is  ne- 
ce«8arily  adeemed  by  the  annihilation  of  the  subject.  Such  is  pre- 
sumed to  be  the  general  rule.  But  in  forming  opinions  upon  cases 
according  to  that  rule,  the  following  distinctions  or  qualifications 
appear  to  require  attention. 

First.  When  the  alteration  of  the  fund  is  made  by  mere  act  or  opera- 
tion, of  law. 

If  A.  bequeathed  to  B.  3000Z.  three  per  cent  consols,  and  that  fund 
were  afterwards  converted  into -one  of  a  different  description  by  Act 
of  Parliament,  so  that  the  fund  and  specification  in  the  will  were  at 
variance,  the  conversion  would  not  probably  be  adjudged  an  ademp- 
tion  of  the  legacy  ;  because  the  alteration  of  the  fund  not  having  been 
made  by  the  testator  but  the  legislature,  the  act  may  not  be  allowed 
the  effect  of  prejudicing  the  legatee ;  and  since  the  change  might 
neither  have  been  foreseen,  nor  could  be  prevented  by  the  testator, 
it  would  be  unjust  to  permit  that  transaction,  to  defeat  the  disposi- 
tion specifically  made  by  his  will.(m)  Besides,  the  thing  given  is 
not  annihilated,  but  exists  under  a  different  denomination,  effected 
by  the  law  alone,  quee  neminifacit  injuriam. 

Secondly.  The  law  will  not  permit  a  fraudulent  transaction  to 
operate  to  the  injury  of  any  person,  whilst  there  remain  any  means 
to  make  reparation.  Hence,  a  second  qualification  of  the  above  rule 
may  happen  where  a  breach  of  trust  has  been  committed,  or  any  trick 
or  device  practised  with  a  view  to  defeat  the  specific  legacy. (w)  Sup- 
pose, then,  stock  specifically  bequeathed,  to  be  sold  or  transferred 
into  another  fund  by  a  trustee,  without  the  knowledge  or  authority 
of  the  testator.  It  is  conceived  that  such  a  transaction  would  not  be 
permitted  to  defeat  the  bequest,  upon  the  principle  that  the  act  of  a 
trustee  will  not  be  allowed  to  prejudice  the  cestui  que  trust,  or  the 
persons  claiming  under  him ;  and  that  a  court  of  equity  will  consider, 
for  the  purposes  of  justice,  the  stock  as  still  subsisting  in  the  fund 
described,  and  answering  the  specification  in  the  will.  It  is  also 
presumed,  that  the  legatee  is  entitled  to  follow  the  subject  into 
other  funds,  or  to  full  recofnperise  out  of  the  trustee's  property,  as  the 
nature  of  the  case  may  require.  And, — 

Thirdly.  If  the  fund,  instead  of  being  annihilated,  remain  the  same 
or  in  substance  the  same,  as  at  the  date  of  the  will,  with  some  unim- 
portant alterations,  so  as  not  materially  to  change  the  interest  which 
the  testator  then  had,  those  slight  variations  will  not  adeem  the  spe- 
cific bequest.  According  to  this  qualification,  if  stock,  specifically 
given,  be  merely  transferred,  with  the  testator's  consent,  from  the 
name  of  his  trustee  into  his  own,  it  has  been  decided  that  such 
transfer  will  not  operate  to  the  injury  of  the  legatee  ;  a  decision  not 
inconsistent  with  the  principle  which  requires  the  stock  specifically 
given  at  the  date  of  the  will,  to  be  in  existence  at  the  death  of  the 
testator ;  because  the  stock  is  in  fact  then  in  existence,  and  was 
never  extinguished  at  any  period  after  it  was  bequeathed  ;  so  that, 
excluding  any  consideration  of  intention,  the  stock,  specifically 
given,  continuing  in  the  same  fund,  and  the  property  of  the  testator, 
both  when  he  made  his  will  and  at  his  death,. (the  possession  of  the 

(m)  See  Partridge,  v.  Partridge,  Forrest.  226.    Bronsdon  v.  Winter,  Ambl.  59. 
(«)  Fide  2  Vem.  748.  ed.  by  Raithby. 


SECT.  I.]  Of  Specific  Legacies.  241 

trustee  being  that  of  the  testator,)  a  construction  that  the  stock  did 
not  fall  within  the  words  or  meaning  of  the  bequest,  in  consequence 
of  the  mere  change  of  the  names  in  which  it  stood,  i.  e.  from  the 
name  of  the  trustee  into  that  of  the  cestui  que  trust,  would  be  con- 
trary to  the  common  sense,  and  if  not  to  the  strict  letter,  to  the  fair 
meaning  of  the  legatory  words.  The  case  referred  to  is  Dlngwell  v. 
Askew,(6]  and  was  to  the  following  effect : 

Previously  to  the  marriage  of  A.  stock  was  vested  in  trustees  to 
her  separate  use  for  life,  then  to  the  issue  of  the  marriage,  after- 
wards according  to  her  appointment  by  will, -notwithstanding  the 
marriage,  and  in  default  of  appointment  to  A.  absolutely.  A.  exe- 
cuted her  power,  and  survived  her  husband.  After  which  event  she 
took  a  transfer  of  the  stock  from  the  trustees  into  her  own  name,  and 
made  no  other  will  or  disposition  of  it.  The  question  was,  whether 
the  transfer  was  an  ademption  of  the  bequest  ^  And  Lord  Kenyan, 
M.  R.  determined  in  the  negative. 

The  last  case  seems  also  an  authority,  that  the  transfer  of  the 
fund,  specifically  bequeathed,  into  the  names  of  new  trustees,  will 
not  affect  the  specific  bequest.  But  to  proceed  one  step  further. 
Suppose  the  trustees  to  be  authorized  by  deed  or  will,  to  change 
securities  with  the  concurrence  of  A.  the  person  who  was  empowered 
to  dispose,  and  had  disposed  by  will  of  the  fund,  then  in  stock;  and 
they,  with  his  consent,  sold  the  stock  specifically  bequeathed,  and 
invested  the  proceeds  upon  a  mortgage.  Would  that  be  an  ademp- 
tion 9  It  is  conceived  that  the  transaction  would  not  have  that  effect, 
since  the  change  of  securities  being  made  under  the  authority  in  the 
original  instrument,  the  new  security  (as  usually  declared,)  is  sub- 
ject to  the  trusts  expressed  in  that  instrument,  one  of  which  was  for 
the  benefit  of  the  testamentary  appointee  of  A.  Hence,  the  act  which 
would  in  other  cases  have  effected  an  ademption  by  extinguishing 
the  fund,  is  precluded  from  so  doing  in  the  present  instance,  from 
the  nature  of  the  transaction  springing  out,  and  part  of  the  original 
instrument.  The  title  of  the  appointee,  moreover,  did  not  rest  solely 
upon  the  testamentary  appointment,  but  was  also  derived  under  the 
instrument  imparting  that  powrer. 

Fourthly.  The  last  qualification  of  the  rule  which  will  be  noticed, 
occurs  in  instances  where  the  testator  lends  the  stock,  specifically 
bequeathed,  on  condition  of  its  being  replaced.  Cases  of  this  kind 
are  analogous  to  those  where  a  cup,  or  other  article,  specifically 
given,  is  afterwards  pledged  by  the  testator,  and  continues  so  till  his 
death  ;  a  circumstance  which,  we  have  seen,  instead  of  being  an 
ademption,  entitles  the  legatee  to  have  the  subject  redeemed  by 
the  executor,  and  delivered  according  to  the  bequest.(p)  So  in 
the  present  instance,  the  testator  continues  owner  of  the  stock, 
notwithstanding  the  loan  of  it;  and  although  it  be  not  literally 
existing  in  his  possession  at  his  decease,  yet  he  is  in  fact  substan- 
tially and  beneficially  possessed  of  it  at  that  period,  and  it  is  pre- 
sumed that  the  transaction  would  not  adeem  the  prior  specific  dis- 
position of  the  fund. 


ro)  1  Cox  Rep.  427.  and  see  Ambl.  260.    3  Bro.  C.  C,  416.    Mose.  373-376. 
\fi)  Sufira,  p.  229.  and  2  Bro.  C.  C.  113, 
VOL.  i.  H  h 


242  Of  the  Jtdemption  [Cti.  V. 

J.  Of  debts  or  securities. 

The  rule  requiring  the  existence  of  the  subject,  as  specified  in 
the  will,  at  the  testator's  death,  equally  applies  to  specific  legacies 
of  debts  or  securities  as  to  stock.  It  therefore  may  be  stated  as  a 
general  proposition,  that  if  the  debt  specifically  given  be  received 
by  the  testator,  the  bequest  of  it  will  be  adeemed,  since  the  subject 
is  annihilated,  and  the  proceeds  do  not  fall  within  the  description 
in  the  will. 

In  Birch  v.  Baker,(g)  A.  being  entitled  under  the  will  of  B.  to 
half  of  two-thirds  of  South  Sea  stock,  India,  Bank,  and  Orphan 
stock,  leases,  East  India  and  South  Sea  bonds,  mortgages,  &c.  be- 
queathed her  share  to  trustees  for  the  benefit  of  C.  after  payment 
of  2001.  to  D.  A  division  was  then  made  between  A.  and  the  other 
legatee  of  B.  of  their  shares  under  JB.'s  will,  and  *fl.  received  her 
moiety,  consisting  of  several  of  the  above  securities,  some  of  which 
she  afterwards  sold,  and  blended  the  proceeds  with  her  other  pro- 
perty. And  Sir  Joseph  Jekyll,  M.  R.  decided  that  the  sales  were 
ademptions. 

So  also  in  Rider  v.  Wager,(r)  B.  specifically  bequeathed  to  D. 
part  of  a  debt  due  to  him  from  C.,  and  the  remainder  of  it  to  E. 
B.  called  in  the  money  ;  and  Lord  King  determined  that  the  legacy 
was  extinguished. 

In  the  last  case,  B.  also  bequeathed  to  F.  a  debt  which  F.  owed 
to  him.  F.  paid  the  money  to  B.,  and  the  legacy  was  held  to  be 
adeemed. 

In  Ashburner  v.  Ml  Guire,  before  stated,  (s)  the  bond-debt,  spe- 
cifically bequeathed  by  A.  to  his  sister  and  her  children,  was  re- 
duced by  the  bankruptcy  of  the  obligor,  under  whose  commission 
A.  received  a  dividend  in  respect  of  the  debt.  Lord  Thurlow  de- 
cided, that  the  dividend  received  by  A.  wag  an  ademption  pro  tanto, 
but  that  the  legatees  were  entitled  to  the  bond,  and  to  subsequent 
dividends. 

That  case  was  followed  by  Badrick.  v.  Stevens,  in  which  Lord 
Thurlow  made  a  similar  decision.  (t) 

So  also  in  Stanky  v.  Potter,  decided  by  the  same  Judge,  and  to 
be  found  in  a  preceding  page,(«)  his  Lordship  adhered  to  the  two 
last  authorities;  observing,  that  when  the  case  of  Ashburner  v. 
Ml  Guire  was  before  him,  he  used  his  utmost  endeavours  in  sifting 
all  the  preceding  cases,  and  discovered  that  no  'certain  rule  could 
be  drawn  from  them,  except  to  inquire  whether  the  legacy  was  spe- 
cific (generally  the  difficult  question  in  those  «cases  ;)  and,  if  specific, 
whether  the  thing  remained  at  the  testator's  death.  His  Lordship 
then  remarked,  that  the  consideration  must  be,  as  if  a  testator  had 
given  a  particular  horse  to  A.,  and  then,  if  that  horse  died  during 
the  life  of  the  testator,  or  was  disposed  of  by  him,  there  was  nothing 
upon  which  the  bequest  could  operate.  It  'was  his  opinion,  that 
the  question  in  the  cases  did  riot  turn  on  the  intention  of  the  tes- 
tator, and  that  the  idea  of  proceeding  on  the  animus  adimendi  had 


(?)  M°se-  374  (r)  2  P.  Will,  329,  330.  332. 

(a)  Suflra,  p.  173.  and  2  Bro.  C.  C.  108-114. 

(0  Case  stated  ante,  p.  183.  and  3  Bro.  C.  C.  431. 

(u)  Sufira,  p.  174.  and  2  Cox,  182. 


SECT.  I.]  of  Specific  Legacies.  243 

introduced  a  degree  of  confusion  in  the  cases  which  was  inex- 
plicable, and  that  he  could  make  no  precise  rule  from  them  upon 
that  ground. 

Next  followed  the  case  of  Fryer  v.  Marris,(x)  before  partially 
stated, (y)  in  which  the  testatrix  received  385Z.  18s.  of  the  debt  on 
note  specifically  bequeathed  by  her,  and  placed  the  money  in  the 
hands  of  B.  and  C.,  bankers;  of  which  sum  she  drew  out  10JL  And 
Sir  William  Grant,  M.  R.  determined,  that  the  receipt  of  the  former 
snm  was  an  ademption,  in  conformity  with  the  preceding  cases,-  and 
the  principle  established  by  them,  viz.  that  the  thing  given  and  de- 
scribed no  longer  existed. 

It  appears  from  early  cases,  that  several  Judges  expressed  opin- 
ions not  only  that  in  the  ademption  of -specific  legacies,  the  testa- 
tor's intention  to  do  so  was  essential,  but  also  that  such  intention 
was  sufficiently  manifested,  in  the  distinction  where  a  testator,  re- 
ceived a  debt  specifically  bequeathed  at  his  own  instance,  and  where 
the  debt  was  paid  to  him  without  his  application  ;  such  opinions  ex- 
pressing in  the  former  cases,  that  receipt  of  the  debt  amounted  to 
an  ademption,  and  that  in  the  latter,  payment  was  no  ademption. 
These  opinions  were  founded  upon  the  following  reasoning :  that  if. 
after  the  specific  bequest  of  a  debt,  a  testator,  upon  application*  or 
by  compulsion,  obtained  it,  an  inference  arose,  that  by  extinguish- 
ing the  demand  he  intended  to  defeattthe  legacy.  But  that  when 
a  testator,  without  solicitation,  and  ex  mero  motu  of  the  debtor,  or  in 
the  regular  course  of  payment,  received  the  debt  specifically  be- 
queathed, as  no  inference  could  be  made  that  by  such  receipt  he 
intended  to  defeat  his  prior  disposition,  the  non-existence  of  the 
debt  at  his  death,  under  such  circumstances,  should  not  be  allowed 
to  disappoint  the  specific  legatee.(^)  The  fallacy  of  this  distinction 
was  soon  discovered ;  for  it  is  not  true  that  in  all  cases  where  a  tes- 
tator applies  for,  or  compels  payment  of  his  debt,  he  is  induced  to 
do  so  from  an  intention  to  defeat  a  prior  testamentary  disposition 
of  it,  but  from  prudential  motives,  such  as  the  apparently  declining 
circumstances  of  the  debtor,  and  the  like.  These  opinions  were 
therefore  rejected,  and  were  succeeded  by  those  expressive  of  the 
legacy's  ademption,  whether  it  was  voluntarily  or  of  necessity  re- 
ceived by  the  testator;  and  upon  the  clear  principle,  that  the  sub- 
ject being  extinguished,  the  specific  bequest  of  it  could  not  possibly 
take  place.  This  change  of  opinion  began  in  the  cases  below  refer- 
red to;(a)  and  was  approved  and  acted  upon  by  Lord  Thurlow  in  the 
cases  of  Jlshburner  v.  MlGuire,(b)  Badrickv.  Stevens,(c)  and  Stan- 
ley v.  Pottered)  before  stated  and  referred  to.  In  the  case  of  Innes 
v.  Johnson,(e)  Lord  Mvanley  M.  R.,  after  observing  that  there  was 
no  occasion  to  enter  into  the  distinction,  as  to  ademption,  between 

(.r)  9  Ves.  360.  (z/)  Supra,  p.  176. 

(z)  See  Ormev.  Smith,  1  Eq.  Ca.  Abr.  302.  2  Vern.  681.  S.  C.  Partridge 
v.  Partridge,  Forrest,  228.  Croc/cat  v.  Crockat,  2  P.  Will.  165.  Rider  v.  Wag- 
er, ibid.  330.  Ellis  v.  Walker,  Ambl.  311,  and  the  observations  of  Lord  Camaen 
on  most  of  those  cases,  in  the  Attorney  General  v.  Parkin,  Ambl.  569. 

(a)  Earl  of  Thomondv.  Earl  of  Suffolk,  1  P.  Will.  464.  '  fordv.  Fleming, 
1  Eq.  Ca.  Abr.  302.  2  P.  Will.  469,  5.  C.  Ashton  v.  Ashton,  3  P.  Will.  385. 
Forrest,  152.  S.  C.  and  Humbling  v.  Lister,  Ambl.  402. 

2  Bro.  C.  C.  108.  .     (c)  3  Bro.  C.  C.  431. 


)  2  Cox,  180.  M  4  Ves.  574. 


(c) 
(e) 


244  Of  the  Ademption  [Cn.  V. 

a  voluntary  payment  by  the  debtor,  and  one  by  compulsion  of  the 
testator,  said,  had  that  consideration  been  requisite,  he  should  have 
agreed  with  Lord  Thurloio,  that  it  made  not  the  least  difference. 
And  in  Fryer  v.  Morris,(f)  Sir  William  Grant  decided,  that  a  vol- 
untary payment  of  part  of  the  debt  to  the  testatrix,  was  an  ademption 
pro  tanto.  Upon  the  whole,  it  may  be  considered  as  the  settled 
rule  of  the  Court  of  Chancery,  that  under  whatever  circumstances 
the  debt  specifically  bequeathed,  is  received  by  the  testator,  an 
ademption  will  be  effected,  upon  the  principle  before  stated,  that 
the  subject  is  annihilated,  and  nothing  remains  upon  which  the  terms 
of  the  bequest  can  operate.  This  proposition  was  confirmed  by 
Lord  Thurlow's  decree  in  Humphreys  v.  Humphrey '*,(#)  in  which 
A.  being  possessed  of  5000Z.  stock,  bequeathed  it  to  B.  and  C.  in 
these  words :  "  All  the  stock  which  I  have  in  the  three  per  cents, 
being  about  50001.  except  500/.  which  I  give  to  C."  He  then  de- 
vised other  specific  parts  of  his  property  to  be  sold,  and  directed 
the  produce  to  be  applied  in  discharge  of  a  mortgage  debt  owing 
by  him.  '  After  this,  A.  sold  20001.  of  the  stock,  and  paid  off'  the 
mortgage  with  the  proceeds;  an  act  which  Lord  Thurlow  held  to 
be  an  ademption  of  the  legacy,  pro  tanto;  observing,  that  he  was 
satisfied,  from  the  consideration  he  had  given  to  the  cases  on  a  for- 
mer occasion,  that  the  only  rule  to  be  adhered  to  was,  to  ascertain 
whether  the  subject  of  the  specific  bequest  remained  in  specie  at  the 
death  of  the  testator ;  and  if  it  did  not,  that  then  there  must  be  an 
end  of  the  bequest ;  that  the  idea  of  discussing  what  were  the  par- 
ticular motives  and  intention  of  the  testator  in  each  case,  in  destroy- 
ing the  subject  of  the  bequest,  would  be  productive  of  endless  un- 
certainty and  confusion;  and  that  therefore,  so  far  as  concerned  the 
20001.  stock  sold  by  the  testator,  the  legacy  was  gone. 

These  authorities  were  followed  by  Sir  John  Leach,  V.  C.  in  Bar- 
ker v.  Rayner,(h)  in  which  Walter  Hammond  effected  two  policies 
of  insurance  upon  the  life  of  his  wife  ;  the  one  for  600i.  and  the 
other  for  150ol.  payable  to  himself,  his  executors,  &c.  within  six 
months  after  his  wife's  death.  By  his  will  he  gave  all  his  right, 
title  and  interest  in  the  policies,  the  policies  themselves,  and  all 
benefit  and  advantage  thereof  to  his  executors  and  trustees,  to  pay 
the  yearly  premium  during  his  wife's  life,  and  after  her  death,  he 
directed  certain  payments  to  be  made  out  of  the  money  to  be  re- 
ceived, and  the  remainder  to  be  placed  out  upon  securities  at  inter- 
est, and  disposed  of  the  principal  and  interest  by  the  will.  The 
testator  survived  his  wife,  who  died  after  the  will  was  made,  and  he 
received  the  amount  of  the  policies,  and  after  applying  part  of  the 
money  to  particular  purposes,  he  placed  but  at  interest  the  remain- 
der upon  securities,  which  were  left  in  the  hands  of  the  executors. 
The  question  was,  whether  under  those  circumstances,  the  specific 
testamentary  disposition  of  the  policies  was  adeemed  ?  And  the  de- 
termination was  in  the  affirmative,  upon  the  principle  that  the  things 
specifically  given,  were  extinguished  and  gone  at  the  death  of  the 
testator.  And  the  Court  said,  "  it  was  only  to  inquife  whether  the 
specific  things  remained  at  the  testator's  death,  and  it  could  not  en- 

360.  (£)  2  Cox,  184,  and  supra,  p,  163. 


SECT.  I.]  of  Specific  Legacies.  445 

ter  into  the  consideration  whether  they  had  or  not  ceased  to  exist  by 
an  intention  to  adeem  on  the  part  of  the  testator." 

Such  being  the  general  rule,  we  shall  advert  to  some  instances 
not  falling  within  it,  and  in  which,  consequently,  they  were  no 
ademptions. 

A  case  of  that  description  is  Crockat  v.  Crockat,(i)  in  which  A. 
bequeathed  the  sum  of  550£.  then  in  B.'s  hands.  It  appeared  that 
before  the  will  was  made  A.  had  placed  that  sum  with  J5.,  and  ob- 
tained his  note  for  it.  A.  had  also,  before  the  making  of  his  will, 
drawn  several  bills  upon  B.,  which  reduced  the  550L  to  430Z.  And 
it  was  held  by  the  Master  of  the  Rolls,  that  in  this  case  there  was  no 
partial  ademption,  but  that  the  whole  legacy  was  payable ;  upon  the 
principle,  that  since  all  the  bills  were  drawn  before  the  date  of  the 
will,  and  as  the  note  for  the  full  sum  of  550Z.  was  outstanding  at  .#.'« 
death,  he  should  be  considered  as  renouncing  the  payments,  and  that 
he  meant  to  give- the  whole  sum  as  a  legacy.  Or  in  other  words,  the 
note  having  been  specifically  bequeathed  and  in  force  when  the  tes- 
tator died,  the  drafts  drawn  upon  its  credit  placed  it  in  the  condition 
of  a  thing  pledged  or  mortgaged,  a  situation  which  imposed  an  obli- 
gation upon  the  executor  to  redeem  and  deliver  it  to  the  legatee. 
That  seems  to  be  the  solid  ground  of  decision. 

So  also  when  an  arrear  of  interest  due  upon  a  debt  at  the  date  of 
the  will  is  specifically  bequeathed,  and  the  testator  afterwards  re- 
ceives interest  upon  the  principal  sum,  such  receipt  will  not  be  an 
ademption,  if  it  appear  that  he  appropriated  the  payment  in  discharge 
of  interest  accrued  after  .the  making. of  his  will;  for  although  the 
money  so  received  be  primn  facie  applicable  in  discharge  of  the  in- 
terest which  first  became  due,  yet  the^  creditor  is  permitted  to  ap- 
propriate it  in  payment  of  the  interest  accrued  after  the  date  of  his 
will,  so  as  to  leave  the  arrear  owing  when  the  will  was  made,  and 
specifically  given,  unliquidated,  and  consequently  in  existence  at  his 
death.  But  the  onus  of  proving  that  intention  falls  upon  the  legatee. 

Thus  in  Graves  v.  Hughes,(k}  A.  being  entitled  to  a  debt  on  mort- 
gage with  an  arrear  of  interest,  after  reciting  in  her  codicil  that  the 
then  arrear  was  6001.  and  upwards,  according  to  her  own  computa- 
tion, bequeathed  it  to  B.  and  C.  It  appeared  from  the  Master's  re- 
port, that  the  exact  amount  of  interest  due  when  the  codicil  was 
made  amounted  to  646£.  8s.  3rf.  A.  continued  to  live  during  eleven 
years  after  the  codicil,  and  received  for  interest  648?.,  which  sum  if 
applied  in  discharge  of  the  interest  due  when  the  codicil  was  made, 
would  have  adeemed  the  legacy.  But  the  Master  found  and  report- 
ed upon  the  affidavit  of  D.  that  the  money  paid  to  A.  after  the  codi- 
cil, was  received  by  her  in  discharge  of  the  interest  which  became 
due  subsequently  to  the  date  of  that  instrument ;  and  under  the  above 
circumstances  it  was  determined,  that  the  arrear  of  interest  which 
was  owing  when  the  codicil  was  made  still  remained,  and  was  con- 
sequently the  property  of  the  specific  legatee. 

Another  class  of  cases  not  falling  within  the  general  rule  applica- 
ble to  ademptions,  is  where  a  testator  shows  an  intention  that  the 
legacy  should  not  fail  although  the  debt  specifically  given  be  dis- 
charged during  his  life,  by  providing  for  that  circumstance.  In  those 

(0  2  P.  Will.  164.  (*)  4  Madd.  383. 


246  Of  the.  Jldemption  [€H.  V. 

instances  the  bequests  are  specific  quoad  the  debt,  and  general  so 
far  as  it  is  necessary  to  resort  to  the  assets  upon  the  annihilation  of 
the  whole  or  any  part  of  siich  debt.  And  although  a  testator  in 
providing  for  the  event  of  the  debt's  discharge  may  have  expressed 
himself  imperfectly,  a  court  of  equity  will  nevertheless  effectuate 
the  visible  intention,  and  supply  the  imperfection. 

Accordingly,  in  the  case  of  the  Earl  of  Thomond  v.  The  Earl  of 
SujjFolk,(l)  A.  being  possessed  of  two  bonds,  the  one  for  2000J.  from 
B.  her  grandson,  and  the  other  for  2000J.  from  C.  her  grand-daugh- 
ter, bequeathed  both  securities  to  C.  and  declared,  that  if  all  or  any 
part  of  the  two  sums  should  be  paid  in  before  her  death,  C.  should 
have  4000/.  or  so  much  money  as  the  principal  so  paid  in  amounted 
to.  A.  released  to  B.  his  bond  debt,  without  receiving  any  of  the 
money.  And  the  question  was,  whether,  as  the  specific  legacy  of 
the  bond  was  so  adeemed  by  the  release,  C.  was,  notwithstanding, 
entitled  to  the  amount  out  of  ASs  assets,  under  the  declaration  in 
her  will,  although  literally  and  strictly  the  debt  was  not  paid  in; 
the  only  event  (according  to  the  natural  import  of  those  words)  in 
which  the  value  of  the  bond  was  directed  to  be  paid  out  of  the 
general  estate*?  And  Lord  Parker  considered  the  intention  to  be 
clear,  that  if  either  bond  were  not  in  existence  at  the  testator's  death, 
the  legatee  should  have  the  amount  out  of  her  estate.  His  Lordship 
also  considered  the  release  as  implying  payment  of  the  debt,  and 
equivalent  to  the  receipt  and  return  of  it  by  the  testatrix,  and  the 
same  as  if  the  will  had  said,  "  jf  these  debts  be  paid  or  discharged." 

The  last  class  of  cases  to  be  noticed  as  not  falling  within  the 
general  rule  of  ademptions,  is  where  the  terms  of  the  bequest  are  so 
comprehensive  as  to  include  within  their  compass  the  fund  specifi- 
cally bequeathed,  although  it  has  undergone  considerable  alteration 
since  the  date  of  the  will.  For.  since  the  substance  of  the  thing 
given,  viz.  the  debt  or  money' remains,  and  the  subsequent  alteration 
of  security  does  not  prevent  it  from  answering  the  description  in  the 
will,  the  principles  upon  which  the  ademption  of  the  specific  lega- 
cies is  founded  do  not  apply.  In  illustration  of  the  present  subject; 
suppose  A,  to  have  notes  •  and  cash  in  the  hands  of  J5.,  and  to  be- 
queath to  C.  the  value  of  his  estate  then  in  the  possession  of  B.  If 
the  notes  and  cash  so  specifically  bequeathed  be  changed  into  ex- 
chequer bills,  or  bonds,  or  mortgages,  and  be  in  the  hands  of  B.  at 
»4.'s  death,  the  alteration  of  securities  will  not  adeem  the  bequest ; 
because  the  property  which  A.  had. in  the  custody  of  B.  at  the  date 
of  the  will,  remained  from  that  time  in  l?.'s  possession  to  the  death 
of  A.-,  and  the  exchequer  bills,  bonds,  or  mortgages,  answered  the 
description  of  value,  the  specification  of  the  fund  in  the  will.  Upon' 
these  principles  Lord  Thurlow  decided  the  following  case : 

In  Pulsford  v.  Hunter, (m)  A.  by  codicrl  of  Decemtyr  1779,  after 
giving  two  small  annuities,  bequeathed  as  follows :  "  this  is  an  ac- 
count of  value  now,  in  my  possession,  and  out  of  which  the  said  yearly 
sums  are  to  be  paid ;  bank  notes  to  the  amount  of  1901.  cash  10Z.  10s., 
ditto  in  the  hands  of  Mr.Drummond  2476Z.  5s.,  267GZ.  15s.;  the  in- 
terest of  the  remaining  part  to  be  applied  for  the  use  and  education 
of  my  grand-children,  till  they  arrive  at-  the  age  of  twenty-one,  and 

(0  1  P.  Will,  4C2-464.  (m)  3  Bro.  C.  C,  416. 


SECT.  I.]  of  Specific  Legacies,  245 

the  principal  to  be  then  equally  divided  amongst  them,"  &c.  It  ap- 
peared that  A.  had  no  cash  in  possession  at  his  death ;  but  that  he 
was  possessed  of  two  bank  notes  amounting  to  301. ;  also,  that  Hun- 
ter in  January  1779,  and  at  .#.'«  request,  left  with  Messrs.  Drummond 
two  navy  billst  the  property  of  A.,  to  the  amount  of  24621.  5s.  4d. ; 
and  that  in  August  1790,  government  discharged  the  navy  bills  and 
interest  with  seventeen  exchequer  bills  of  100Z.  each,  and  with  92,11. 
Is.  cash,  making  a  total  of  2621 1.  Is.',  which  exchequer  bills  re- 
mained in  the  hands  of  Messrs.  Drummond,  in  the  name  of  Hunter, 
and  the  9211.  Is.  placed  to  his  account;  that  in  September  1780, 
Hunter  drew  a  draft  on  Drummond  for  2ll.  Is.  in  favour  of  the  tes- 
tator, which  was  paid ;  and  he  afterwards  took  out  the  remainder  of 
the  sum,  and  bought  nine  other  exchequer  bills  of  IQOl.  each,  and 
left  them  with  Drummond'm  his  .own  name,  which  made  up  twenty- 
six  exchequer  bills;  that  afterwards  sixteen  of  the  bills  were  depo- 
sited with  Drummond  at  the  testator's  request,  in  ,his  own  name,  and 
the  remaining  ten  bills  were  pai'd  to  Hunter,  and  another  person,  in 
satisfaction  of  a  debt  of  1000Z.,  and  it  appeared  that  the  testator 
never  had  any  property,  in  the  hands  of  Drummond,  in  his  own 
name,  except  as  before  stated.  It  was  one  of  the  questions,  whether, 
as  at  the  time  of  the  bequest  the  property  in  the  possession  of  Drum- 
mond  was  navy  bills,  and  had  been  subseqently  altered  in  the  man- 
ner before  mentioned,  the  legacy  was  not  adeemed ;  or,  whether  the 
grand-children  were  entitled  to  the  sixteen  exchequer  bills  remain- 
ing in  the  hands  of  Drummond  at  the  death  of  the  testator  ?  And 
Lord  Thurlow  determined  in  their  favour ;  observing  that  the  ques- 
tion in  these  cases  was,  whether  the  specification  of  the  thing  be- 
queathed remained  the  same  at  the  testator's  death  as  it  was  at  the 
time  of  the  bequest.  If,  therefore,  the  present  had  been  a  bequest  of 
navy  bills,  he  must  have  thought  that  the  grand-children  could  not 
have  taken  the  exchequer  bills,  because  the  specification  was  not  the 
same.  The  thing  given  would  not  have  been  in  existence  at  the  tes- 
tator's death,  but  that  the  word  in  the  codicil,  was  "value,"  a  de- 
scription answered  by  the  exchequer  bills  which  remained,  and  were 
value  in  the  hands  of  Drummond;  his  Lordship,  therefore,  deter- 
mined as  above. 

3.  We  shall  next  consider  the  ademption  of  specific  legacies  of 
goods,  &c. 

It  was  shown  in  the  fourth  chapter,(w)  that  if  the  terms  of  the  be- 
quest referred  to  specific  articles. in  the  possession  of  the  testator 
when  he  made  his  will,  those  only  would  pass  which  he  then  had;(o) 
and  that  if  the  testamentary  words  related  to  the  period  of  his  death, 
goods,  &c.  which  were  in  his  possession  at  that  time  would  be  in- 
cluded.^) Hence  there  appears  to  be  a  distinction  between  those 
two  cases  in  relation  to  ademption,  in  the  latter  every  article  dispo- 
sed of  between  the  date  of  the  will  and  the  death  of  the  testator  will 
be  an  ademption;  but  if  they  be  replaced  by  others,  or  be  increased, 
the  new  articles  will  pass  to  the  legatee,  because  they  answer  the 
description  of  the  bequest:  but  it  is  otherwise  in  the  former  case, 
where  the  gift  is  limited  and  confined  to  such  goods  only  as  belong- 

(«)  Sufira,  p,  222.  (o)  Ambl.  281.  (/z)  2  Vern.  688. 


246  Of  the  Jldemption  [Cn.  V, 

ed  to  the  testator  at  the  date  of  his  will,  for  by  the  disposition  of  any 
of  them  the  subjects  specifically  bequeathed  are  to  that  extent  anni- 
hilated ;  and  as  the  words  of  the  bequest  do  not  include  articles  after- 
wards acquired,  they  cannot  pass  in  substitution  of  or  in  addition  to 
those  sold  or  disposed  of.  The  observations  which  have  been  made 
in  considering  the  ademption  of  specific  legacies  of  stock  and  debts 
equally  apply  to  the  present  subject  of  goods. 

In  Green  v.  Symonds,(q)  the  testator  bequeathed  to  C.  all  his 
books  at  his  chambers  in  the  Temple.  He  afterwards  removed  his 
books  into  the  country,  and  the  act  was  held  to  extinguish  the 
legacy. 

So  also  in  Heseltine  v.  Heseltine,(r)  the  bequest  was  of  "  all  the 
testator's  household  goods,  plate,  linen  and  china,  and  all  the  wine 
and  other  liquors,  goods  and  chattels  whatsoever,  which  should  be  in 
or  about  his  dwelling  house  at  B.  and  C.  at  the  time  of  his  death ; 
and  also  his  coach  and  other  carriages,  with  his  horses  and  all  his 
live  stock  at  C."  After  this  the  testator  took  a  house  in  D.  and  re- 
moved to  it  the  greater  part  of  the  furniture  from  his  house  at  J&, 
The  removal  was  adjudged  to  be  an  ademption. 

The  last  two  cases  were  determined  upon  the  personal  acts  of  the 
testators.  But  the  effect  will  be  the  same  if  the  removal  of  the  arti- 
cles specifically  bequeathed  be  by  an  agent  officiating  under  a  gene- 
ral authority,  and  the  act  meet  with  the  approbation  of  a  testator^ 
and  probably  without  the  appearance  of  any  such  approval,  for  the 
act  of  such  an  agent  is  that  of  the  testator. 

Accordingly  in  the  case  of  Skqftesbury  v.  Shqftesbury,(s)  A.,  be- 
fore he  went  abroad  for  the  benefit  of  his  health,  bequeathed  to  his 
wife  all  the  plate,  &c.  which  should  be  in  his  house  at  C.  at  the  pe- 
riod of  his  death.  During  the  absence  of  A.  his  steward,  acting 
under  a  general  authority,  procured  the  absolute  owner  of  the  house 
to  accept  a  surrender  of  JL?s  lease,  and  in  consequence  the  steward 
removed  ./?.'«  plate,  &.c.  to  another  house  belonging  to  «#. ;  a  trans- 
action afterwards  approved  of  by  •/?.  And  the  question  being  whether 
the  removal  of  the  plate,  &c.  was  an  ademption  of  the  legacy,  it 
was  decided  in  the  affirmative. 

The  general  rule  that  goods  specifically  bequeathed  must  be  in 
the  place  described  at  the  death  of  the  testator,  may  be  inapplicable 
to  some  cases,  so  that  their  removal  during  his  life  will  not  create 
an  ademption.  The  principle  seems  to  be  this, — that  the  bequests 
of  the  articles  must  be  supposed  to  be  made,  subject  to  the  several 
accidents  and  contingencies  to  which  they  are  exposed.  In  which 
cases,  if  by  any  of  those  accidents  or  contingencies,  the  goods,  by 
removal,  do  not  literally  answer  the  specification  in  the  will,  a  court 
of  equity  will,  notwithstanding,  consider  them  as  being  in  the  house 
or  place  at  the  testator's  death.  This  appears  to  be  the  true  prin- 
ciple of  the  authorities  upon  the  subject. 

A  qualification  or  exception  to  the  general  rule  appears,  there- 
fore, to  occur  when  the  goods  specifically  given  are  removed  out  of 
the  house  described  for  the  sake  of  preservation  from  fire,(£ )  an  ac- 
cident for  which  they  were  liable  to  be  removed  when  the  will  was 
made. 

(?)  1  Bro.  C.  C.  129,  in  a  note.  (r)  3  Madd.  276. 

(«)  2  Vern,  747.  Ed.  by  Raithby.  (f)  1  Ves.  sen.  273. 


SECT.  I.]  of  Specific  Legacies.  247 

So  also  it  would  seem,  that  if  the  goods  were  removed  by  fraud, 
or  without  the  testator's  knowledge  or  authority,  the  act  would  not 
*be  permitted  to  adeem  the  specific  bequest  of  them,  as  may  be  col- 
lected from  the  declaration  in  the  decree  pronounced  in  the  case  of 
Shaftesbury  v.  Shaftesbury. (u) 

Another  probable  qualification  to  the  above  rule,  and  founded 
upon  the  principle  before  stated,  may  happen,  when,  from  the  nature 
of  the  place  in  which  the  goods  are  specified  to  be,  it  is  considered 
that  the  locality  of  them  was  not  referred  to  as  essential  to  the  be- 
quest, but  as  merely  descriptive  of  the  articles  meant  to  be  given,  and 
substituted  in  lieu  of  a  schedule  particularizing  them.  In  conformity 
with  this  remark,  Lord  Hardwicke,  in  the  case  of  Ward  v.  Turner,(x] 
took  a  distinction  between  goods  in  a  house  and  goods  in  a  ship  ; 
observing  that  a  bequest  of  goods  on  board  of  a  ship,  must  be  sup- 
posed to  be  made  with  a  view  to  the  several  accidents  and  contin- 
gencies to  which  they  were  liable  ;  and  that  should  it  be  determin- 
ed that  if  by  any  accident  the  goods  should  not  be  on  board  at  the 
testator's  death,  they  should  not  pass,. such  a  decision  would  defeat 
several  marine  wills.'  His  Lordship  then  remarked,  that  if  the  goods 
were  removed  for  preservation,  as  if  the  ship  were  leaky  or  likely  to 
founder,  or  if  the  testator  were  removed  to  another  ship  (his  goods  of 
course  accompanying  him)  a  contingency  to  which  he  was  daily 
subject,  and  an  order  which  he  could  not  resist,  neither  of  those 
circumstances  would  adeem  the  specific  bequest  he  had  made  of  them. 

Under  the  present  qualification  or  exception  to  the  general  rule, 
those  instances  may  be  classed,  where,  for  example,  a  person  having 
two  houses  A.  and  B.  at  which  he  alternately  resides,  and  being  pos- 
sessed of  only  one  set  of  furniture,  which  he  removes  with  himself  to 
each  house,  bequeaths,  whilst  living  in  A.  "  all  his  furniture  at  A" 
to  C.  Although  the  whole  of  the  furniture  may  be  in  house  B.  be- 
cause the  testator  happened  to  die  there,  yet  the  accident  of  his  be- 
ing resident  in  that  house  at  the  time  of  his  death,  with  the  furniture, 
will  not  be  an  ademption  of  the  legacy.  For  under  the  above  cir- 
cumstances the  locality  of  the  HirnitUre  at  house  A.  at  the  period 
of  his  decease,  was  not  of  the  essence  of  the  legacy ;  the  bequest 
being  made  with  a  view  and  consideration  of  the  accident  of  their 
being  in  house  B.  at  the"  death  of  the  testator;  so  that  the  disposi- 
tion was  nothing  more  in  effect  than  a  specific  bequest. of  his  house- 
hold furniture.  Upon  such  reasoning  as  above,  Lord  Thurlow  made 
the  following  decision  : 

In  Land  v.  Devaynes,(y)  B.  after  bequeathing  to  his  wife  1000Z. 
devised  to  her  "  all  his  plate,  linen  and  furniture  in  his  house  in  <S." 
together  with  the  lease  of  the  said  house  for  the  residue  of  the  term. 
B.  had  two  houses,  that  in  <S'.  and  another  in  T.  at  each  of  which  he 
resided  alternately.  When  he  made  his  will  his  plate,  linen  and 
furniture  were  in  the  house  at  S.  except  sufficient  linen  to  serve  the 
family  for  one  week  without  washing,  which  were  in  the  house  at  T. 
It  appeared  that  B.  had  only  one  service  of  plate,  which,  with  all  the 
linen,  except  sufficient  for  one  week's  use  without  washing,  always 
accompanied  himself  and  family  from  one  house  to  the  other,  when 

(K)  Stated  by  Mr.  Raithby  in  a  note  to  that  case,  2  Vern.  748. 
(or)  2  Ves.  sen.  431.  •    (y)  4  Bro.  C.  C.  537, 

VOL.  I.  I    1 


248  Of  the  Memption  [Cn.  V. 

they  changed  their  residence.  TJiere  happened  to  be  no  plate  in 
the"  house  at  S'.  at  B.'s  death,  except  a  silver  bowl,  but  his  widow^ 
the  legatee,  not  only  claimed  the  linen  and  furniture  which  were  in 
that  house  at  the  last  mentioned  period,  but  also  such  plate,  linen 
and  furniture  as  were  in  the  house  when  he  made  his  will,  or  such  as 
at  that  time  he  had  been  in  the  habit  of  using  in  his  house  at  S.  dur- 
in<*  his  residence  there,  and  which  were  carried  backwards  and  for- 
wards between  the  two  houses,  as  he  resided  in  either.  Lord  Tkur- 
low  said,  that  B.  having  only  one  set  of  plate  and  linen,  which  was 
not  sufficient  for  both  houses,  was  accustomed  to  remove  them  with 
himself,  it  was  therefore  like  a  general  devise  of  all  his  plate  and  li- 
nen, and  his  Lordship  ordered  all  the  plate  to  be  delivered  to  the 
widow,  and  also  all  the  linen,  except  the  linen  for  the  week  that  was 
left  at  the  house  in  T. 

It  was  before  noticed  that  when  goods  are  specifically  given,  the 
rule  is  general  that  they  must  be  in  the  testator's  possession  at  his 
death,  so  that  if  he  disposed  of  any  of  them,  the  legacy  would  be 
so  far  gone.(2)  But  this  qualification  must  be  observed,  that  if  the 
disposition  be  not  absolute,  it  will  not  have  the  above  effect,  as 
where  a.  testator  pawns  or  pledges  an  article  specifically  bequeathed, 
a  right  of  redemption  is  left  in  the  testator,  and  passes  to  the  legatee 
at  his  death,  and  that  interest  entitles  him  to  have  the  subject  re- 
deemed out  of  the  general  assets  of  the  testator.  (a) 

It  is  to  be  further  remarked,  that  when  a  specific  legacy  of  pro- 
perty which  the  testator  had  at  the  date  of  his  will  is  once  adeemed 
by  extinction  of  the  subject,  and  there  is  nothing  remaining  to  which 
the  words  of  the  bequest  can  apply,  the  mischief  cannot  be  remedied 
by  a  simple  re  publication  and  confirmation  of  the  will.  (6)  But  it 
would  seem  that  republication  might  have  an  effect  favourable  to 
the  legatee,  if  after  the  ademption  of  the  legacy  and  before  the  re- 
publication,  the  testator  acquired  property  to  which  the  words  of  the 
will  could  be  applied.  Suppose,  then,  the  legacy  to  be  of  goods  or 
stock  of  which  the  testator  was  possessed  at  the  date  of  his  will, 
that  he  sold  them  and  invested  the  proceeds  in  the  purchase  of  other 
goods  or  stock  and  afterwards  to  republish  and  confirm  his  will  by  a 
codicil  ;  it  is  presumed  that  the  republication,  although  unable  to 
revive  that  which  was  extinct,  would  nevertheless  entitle  the  legatee 
to  the  new  articles  ;  first,  because  the  terms  of  the  bequest  are  suf- 
ficient to  embrace  them,  and  secondly,  because,  by  the  republica- 
tion, the  will  is  made  to  speak  from  the  date  of  the  codicil.  (c) 

4.  Since  the  situation  or  locality  of  goods  specifically  bequeathed, 
may,  as  we  have  seen,  be  such  as  to  exempt  them  from  the  rule 
which  requires  their  being  found  at  the  testator's  death  at  the  place 
described  in  his  will,  so  may  the  nature  of  the  subject  have  a  simi- 
lar effect,  according  to  a  decision  of  Lord  Hardwicke.  To  illustrate 
this  in  the  instance  of  partnerships.  It  has  been  determined  that  if 
a  partner,  under  articles  providing  for  their  renewal,  specifically  be- 


3  o  v^'  P<  ^  246-  (fl)  Swinb-  P«  525-     2  Bro.  C.  C.  113. 

nJ2  ,,2/ye<?RSenD   ^  E**6"**  v-  Monck,  1  Ball  &  Beat.  306.     Chesslyn  v. 
Cresswdl,  3  Bro.  Parl,  Ca.  246.  8vo  ed 

,,£L  %KSLI;  Fe7f°^g^  2  Bro-  C-  C-  292-  a  decision  of  Lord  T/turloiv  over- 
Vek  len  419m'°"  Hardwicke  in  Abney  v.  Miller,  2  Atk.  599.     See  also  2 


SECT.  I.]  of  Specific  Legacies.  249 

queathed  his  share  of  the  profits  (naming  the  amount,}  and  upon  the 
expiration  of  the  old,  new  articles  are  entered  into,  by  which  his 
share  of  profits  is  altered,  the  legacy  will  not  be  adeemed.  The 
principle  of  this  decision  has  been  before  stated,  viz.  that  it  is  to  be 
presumed  from  the  nature  of  the  property,  that  the  bequest  was  made 
in  contemplation  of  the  determination  and  renewal  of  the  old  arti- 
cles, and  an  alteration  in  the  shares  of  the  partners,  and  that  there- 
fore since  the  subject  bequeathed  always  continued  in  the  same  fund, 
its  amount  alone  being  altered,  and  the  new  articles  being  a  con- 
tinuation of  the  old,  it  would  be  unreasonable  and  contrary  to  the 
testator's  intention  when  he  made  his  will,  and  also  to  the  nature  of 
the  transaction,  to  hold  it  an  ademption  of  the  specific  bequest.  Ok 
this  opinion  was  Lord  Hardwicke  in  the  case  of  Backwell  v.  Child,(d) 
which  was  to  the  following  effect : 

A.,  B.  and  C.  were'  partners  in  the  banking  business  under  arti- 
cles made  in  the  year  1743.  .#.,  after  reciting  in  his  will  that  he 
had  reserved  to  himself  by  the  articles,  nine  in  twelve  parts  of  the 
profits  to  arise  by  banking  in  his  house  at  T.,  did  (in  pursuance  of 
the  power  also  reserved  thereby)  dispose  of  such  nine  parts  in  man- 
ner following  :  one  ninth  part  to  B.  and  C.  in  ad'dition  to  the  shares 
they  were  entitled  to  under  the  articles,  as  a  recompense  for  the 
trouble  they  snould  incur  in  carrying  on  the  banking  business  for 
the  benefit  of  his  wife  and  children  ;  another  ninth  part  to  his  wife  ; 
three  ninths  to  his  eldest  son;  and  four  ninths  to  his  two  youngest 
sons.  The  articles  of  1743,  expired  after  the  date  of  the  will,  and  A. 
entered  into  new  articles  with  B.  and  C.  at  the  end  of  a  year  after- 
wards, by  which  the  business  was  divided  into  twenty-four  parts  or 
shares,  and  fourteen  of  them  were  declared  to  belong  to  A.,  seven  to 
B.  and  three  to  C.  There  was  a  provision  in  the  articles  of  1743, 
that  if  any  of  the  partners  died  during  the  partnership  under  those  or 
any  future  articles,  the  shares  of  the  persons  so  dying  should  belong 
to  their  executors.  There  were  also  secret,  or,  what  are  called,  side- 
articles  entered  into  by  them,  but  no  new  ones  were  made  when  the 
parties  entered  into  the  last  articles.  Upon  a  question  whether  the 
second  articles  were  an  ademption  or  a  revocation  of  rf.'s  will,  Lord 
Hardwicke,  determined,  that  they  were  not,  observing,  that  although 
the  fund  was  altered  and  differently  arranged,  it  was  in  fact  subsist- 
ing at  »#.'s  death,  and  his  Lordship  said,  "  that  when  a  person  in 
trade  makes  provision  outofh\s  share  for  his  family,  and  afterwards 
renews  the  partnership,  by  which  perhaps  his  interest  is  varied,  yet 
it  is  not  a  revocation  ;  if  it  were,  it  would  occasion  great  confusion." 

5.  With  respect  to  the  ademption  of  specific  devisees  of  lands 
held  under  leases  for  terms  of  years  or  for  lives,  by  the  subsequent 
surrenders  of  the  old  leases  for  the  purpose  of  renewal,  the  following 
rules  and  distinctions  may  be  collected  from  the  cases  determined 
on  the  subject. 

FIRST, — As  to  leases  for  terms  of  years. 

The  same  rule  which  requires  the  existence  of  the  thing  specifi- 
cally bequeathed,  at  the  death  of  the  testator,  and  before  so  frequent- 
ly exemplified,  equally  applies  to  the  subject  now  under  considera- 
tion. The  only  question  to  be  settled  is,,  whether  the  words  of  the 

(rf)  Ambl.  260.    See  also  Ellis  v.  Walker,  ibid.  309.  and  stated  ante,  p.  155. 


o-,0  Of  the  Ademption  [Cn.  V* 

lienuest  merely  refer  to  the  identical  lease  or  term  for  years  which 
the  testator  was  possessed  of  when  he  made  his  will,  or  whether  they 
arc  sufficiently  comprehensive  to  include  such  estate  in  the  lands 
which  the  testator  should  have  in  them  by  renewal  or  otherwise  at 
the  period  of  his  death.  In  the  first  case  an  effective  surrender  of 
the  lease  will  adeem  the  legacy  ;  and  in  the  other,  the  bequest  will 
not  be  disappointed.  It,  therefore,  will  be  useful,  first  to  consider 
the  expressions  which  have  been  adjudged  to  be  restrictive  of  the 
bequest,  to  the  lease  or  term  that  the  testator  had  at  the  date  of  his 
will,  and  secondly,  those  which  have  been  considered  large  enough 
to  comprise  all  the  interest  he  had  in  the  lands,  at  his  decease,  how- 
ever altered  or  modified  after  the  making  of  his  will. 

1.  When  the  surrender  of  a  lease  specifically  bequeathed,  will  ef- 
fect an  ademption. 

An  examination  of  all  the  cases. upon  the  present  subject,  appears 
to  establish  the  following  rule  :  that  when  a  testator,  in  disposing  of 
lands  in  which  he  is  possessed  of  the  legal  estate  for  the  residue  of 
a  term  of  years,  expresses  himself  in  the  present  tense,  and  all  the 
words  directly  refer  to  the  term  or  lease  of  which  he  was  then  pos- 
sessed, none  of  them  having  a  prospective  import,  referring  to  his 
death;  and  there  is  nothing  apparent  upon  the  face  of  the  will,  to 
show  a  clear  intention  that  he  used  the  words  in  any  other  sense 
than  they  grammatically  and  legally  import ;  the  term,  lease,  and 
interest  only  which  he  had  when  he  made  the  bequest  will  pass  to 
the  legatee.  Hence  it  follows,  that  his  surrender  of  the  lease  will 
adeem  the  legacy,  by  annihilating  the  subject  of  the  gift.  And  since 
the  expressions  in  the  will  embrace  no  other  interest  than  that  ex- 
tinguished, a  new  term  acquired  by  the  testator  upon  a  renewal  of 
the  surrendered  lease,  cannot  pass  to  the  specific  legatee.  It  must, 
however,  be  noticed,  that  the  surrender  of  the  old  lease  must  be  ef- 
fectual, or  there  will  be  no  ademption.  '.And  it  is  conceived  that 
the  above  observations  will  be  supported  by  the  following  au- 
thorities : 

Thus,  in  JIbney  v.  Miller  ^(e]  A.  bequeathed  all  his  college  leases 
which  he  then  held  of  Magdalen  College  to  E.  to  be  sold  immedi- 
ately after  his  death,  with  directions  to  divide  the  proceeds  amongst 
several  persons,  including  E.,  and  A,  appointed  E.  executrix  and 
residuary  legatee.  A.  afterwards  surrendered  his  college  leases,  and 
accepted  two  new  ones,  the  one  in  December  1736,  and  the  other  in 
August  1740.  A.  paid  large  sums  of  money  for  fines,  but  the  last 
lease  was  not  sealed  with  the  college  seal  till  after  his  death.  The 
question  was,  whether  the  specific  devise  of  the  old  leases  was  adeem- 
ed by  their  surrender  and  acceptance  of  the  new.  And  Lord  Hard- 
wicke  determined  that  the  surrender  of  the  old,  and  acceptance 
the  new  lease  in  1736,  was  an  ademption,  because  the  words  of 
devise  being  in  the  present  tense,  and  therefore  only  applicable  to 
the  lease  then  in  existence,  could  not  possibly  comprehend  the  re- 

swed  lease.    But  as  to  the  new  lease  of  1740,  his  Lordship  decided, 
it  was  void  for  want  of  the  college  seal,  the  devise  of  the  old 
one  was  not  adeemed  by  the  mere  attempt  of  A.  to  renew. 

1  he  last  case  was  followed  by  that  of  Rudstane  v.  Anderson,{f)  in 
(e)  2  Atk.  593.  597.  (/)  2  Ves.  sen.  419. 


SECT.  I.]  of  Specific  Legacies.  251 

which  A.  devised  in  the  following  words :  "  All  my  lands,  tenements, 
and  hereditaments  at  JVestow  in  Yorkshire,  and  all  my  tithes  and 
ecclesiastical  dues  payable  out  of  Westow  aforesaid,  or  any  other 
towns  or  places  near  the  same,"  I  give  to  B.  At  this  time  A.  was 
seised  in  fee  of  her  estate  at  W.  and  possessed  of  a  Imse  of  the  tithes 
there  under  the  Archbishop  of  York ;  but  she  afterwards  surrender- 
ed that  lease  and  took  a  new  one,  and  of  which  she  died  possessed. 
The  only  question  was,  whether  the  devise  of  the  tithes  was  adeem- 
ed by  the  surrender  of  the  old  lease  ?  And  Sir  John  Strange,  M.  R. 
.decided  in  the  affirmative,  and  remarked,  that  he  saw  no  distinction 
between  the  words  in  the  will,  "  all  my  tithes  at  Westow;"  and  if 
they  had  been  "  all  my  lease  or  interest  in  that  lease  at  JVestow" 
because  the  latter  words  must  refer  to  the  interest  A.  had  at  the  time 
of  making  her  will ;  which  interest  being  extinguished  by  the  sur- 
render, the  new  estate  in  the  tithes  which  she  acquired  by  the  sub- 
sequent lease,  could  not  pass  under  the  description  in  the  bequest, 
without  the  aid  of  a  republication  of  the  will. 

Similar  to  the  last  authority  was  the  case  of  Hone  v.  Medcraft,(g) 
where  A.  bequeathed  to  B.  "  the  perpetual  advowson  and  disposal 
of  the  living  or  rectory  of  Waverdon  for  ever,  together  with  the 
tithes  of  all  sorts  thereof.  The  rectory  was  held  by  a  lease  under 
New  College,  Oxford,  for  a  term  often  years  from  1766  ;  which  A. 
surrendered  after  the  date  of  his  will ;  and  A.  took  a  new  lease  in 
the  year  1770  for  ten  years,  and  died  before  its  expiration.  One  of 
the  questions  was,  whether  the  advowson  passed  by  the  will,  or  the 
devise  of  it  was  adeemed  by  the  surrender  of  the  old  lease,  and  the 
acceptance  of  a  new  one  9  And  Lord  Thurlow  determined  that  the 
legacy  was  extinct ;  remarking,  that  he  had  read  Abney  v.  Miller, 
and  all  the  other  cases  on  the  subject,  and  discovered  that  he  must 
contradict  all  of  them,  if  he  did  not  construe  the  present  devise  of 
the  leasehold  estate,  which  was  afterwards  surrendered,  a  lapsed 
devise. 

It  appears  that  the  preceding  cases  were  •  decided  upon  expres- 
sions, that  from  their  import  could  not  be  considered  as  relating  to 
any  estate  or  interest,  but  that  which  the  testators  were  possessed  of 
under  the  then  existing  leases.  But  the  case  next  stated  proves  the 
following  proposition ;  that  however  general  the  terms  of  bequest 
may  be,  yet,  if  instead  of  having  a  prospective  view,  so  as  to  em- 
brace any  interest  the  testator  may  have  in  the  subject  at  the  period 
of  his  death,  they  merely  relate  to,  and  are  satisfied  by  the  interest 
which  he  had  and  devised  at  the  date  of  his  will;  such  terms  or  ex- 
pressions will  not  prevent  an  ademption  by  the  surrender  of  the  old 
lease,  and  pass  to  the  legatee  the  new  estate  acquired  in  the  subject 
by  the  testator,  after  the  devise  by  renewal  or  otherwise.  In  illus- 
tration of  this,  suppose  B.  to  devise  to  C.  his  leasehold  house  in  D. 
and  all  his  estate,  term,  and  interest  therein;  the  ktter  general  words 
would  be  referred  to,  as  they  are  satisfied  by  the  identical  estate, 
term,  and  interest,  which  B.  had  in  the  house  at  the  period  of  the 
devise,  and  a  subsequent  surrender  of  the  lease  by  the  testator  would 
be  an  ademption  of  the  legacy.  (A) 

(,§•)  1  Bro.  C.  C.  263.  (A)  See  James  v.  Dean,  11  Ves.  383-387.  395. 


225  Of  the  Ademption  [Cn,  V. 

Accordingly,  in  Slatter  v.  Noton,(i)  Jl.  devised  to  B.  her  lease- 
hold garden  and  the  stable  adjoining  her  dwelling-house,  during  his 
life  with  remainder  to  his  children ;  but  if  he  died  without  issue,  she 
then  gave  the  said  garden  and  stable,  and  "all  her  estate,  term,  and 
interest  therei^"  to  C.  absolutely.  With  respect  to  the  dwelling- 
house,  A.  bequeathed  it  to  D.  for  life,  with  remainder  to  his  children ; 
and  if  he  died  without  issue,  then  she  gave  her  said  dwelling-house, 
and  "  all  her  estate,  term,  and  interest  therein,"  to  E.  and  F.  abso- 
lutely. The  premises  were  held  by  the  testatrix  under  lease  from 
the  corporation  of  Winchester,  which  she  surrendered  and  took  a 
new  lease  for  forty  years;  and  the  question  was,  whether  the  specific 
devise  was  affected  by  the  surrender  and  renewal  of  the  lease  *?  And 
Sir  William  Grant,  M.  R.  determined  that  the  legacy  was  adeemed, 
upon  the  principle,  that  A.  having  expressed  herself  in  the  present 
tense,  (none  of  the  words  being  prospective  to  take  in  any  interest 
which  she  might  subsequently  acquire  in  the  house,  stable,  &c.)  the 
terms  were  referrible  to  no  other  estate  in  the  house,  &c.  than  what 
she  possessed  under  the  lease  existing  at  the  date  of  the  will. 

In  the  last  and  similar  cases,  if  the  wills  had  been  republished, 
the  ademptions  created  by  the  surrenders  of  the  old  leases,  would, 
as  it  is  presumed,  have  been  remedied  in  the  acceptances  of  the  new, 
since  the  effect  of  republications  is  to  make  the  wills  speak  from 
the  dates  of  the  codicils,  as  before  observed, (A;)  which  being  subse- 
quent to  the  renewals,  and  the  renewed  interests  falling  within  the 
terms  of  the  bequests,  there  appears  to  be  no  reason  to  prevent  those 
interests  from  passing  to  the  legatees.  Such  was  the  opinion  of 
Sir  John  Strange,  M.  R.,  in  Rudstone  v.  Anderson,  before  stated  ;(/) 
and  so  Lord  Thurlow  determined  in  Coppin  v.  Fernyhough,(m) 
which  was  a  case  to  the  following  effect : 

A.  being  seised  of  a  freehold  farm,  called  C.  farm,  and  possessed 
of  the  manor  of  D.  under  a  lease  from  the  prebendary  of  the  pre- 
bend of  D.  for  twenty-one  years,  which  was  usually  renewed  every 
seven  years,  bequeathed  to  his  daughter  an  annuity  charged  on  C. 
farm,  and  upon  all  his  leasehold  estates  in  the  parish  of  D. ;  and  he 
devised  the  same,  subject  to  the.  annuity,  to  the  same  uses,  &c.  as 
were  declared  of  his  freehold  lands,  limited  in  strict  settlement  by 
a  prior  instrument.  The  testator  .renewed  the  lease  which  existed 
at  the  date  of  his  will,  and  purchased  a  lease  for  three  lives  of  other 
lands,  and  then  made  a  codicil,  devising  his  purchased  estate  to 
trustees,  &c.  It  was  one  of  the  questions,  whether,  if  the  renewal 
of  the  lease  of  the  manor  of  D.  were  an  ademption  of  the  specific 
devise,  the  will  was  not  republished  by  the  codicil,  and  the  renewed 
lease  did  not  pass  to  the  specific  legatee  *?  And  Lord  Thurlow  de- 
termined, that  by  the  codicil,  the  will  was  republished,  which  ena- 
bled such  will  to  pass  the  renewed  lease  :  a  decree  necessarily  ad- 
mitting that  the  renewal  was  an  ademption  of  the  specific  legacy. 

It  is  observable  that  the  preceding  cases,  in  which  ademptions 
were  effected  by  surrenders  of  the  old  leases,  were  cases  where  the 
legal  estate  in  the  terms,  was  vested  in  the  testators,  and  not  in 
other  persons  in  trust  for  them.  In  instances  of  the  latter  kind, 

(i)  16  Ves.  197.  (*)  Sufira,  p.  250.  (/)  p.  250. 

(m)  2  Bro.  C.  C.  292.  and  see  Carte  v.  Carte,  3  Att.  175--180. 


SECT.  I.]  of  Specific  Legacies.  253 

Lord  Hardwicke  has  expressed  a  clear  opinion,  that  what  would  be  an 
ademption  at  law,  the  legal  interest  being  in  the  testator,  will  not  be 
so  in  equity,  when  the  testator  is  merely  entitled  to  the  equitable  inter- 
est ;  and  his  Lordship  observed, (n)  that  an  abundance  of  acts  were 
sufficient  to  pass  the  trust  or  equitable  interest,  which  would  not 
pass  it  at  law.  The  principle  appears  to  be  this  :  that  when  the 
subject  is  purely  legal,  as  where  the  testator  is  possessed  of  the  legal 
term,  the  act,  which  at  law  would  amount  to  an  ademption,  must 
be  equally  so  in  equity  to  preserve  uniformity  of  decision  ;  but  that 
where  thesubject  is  solely  within  the  jurisdiction  of  a  court  of  equity, 
as  where  the 'testator  is  merely  cestui  que  trust,  and  the  equitable  in- 
terest alone  is  bequeathed,  the  Court  will  not  permit  a  mere  surren- 
der of  the  old  lease  by  the  testator  and  his  trustee  to  defeat  the  spe- 
cific legatees,  but  will  consider  the  intention  appearing  upon  the 
will ;  and  although  there  may  be  no  expressions  sufficient  at  law  to 
pass  the  renewed  lease,  yet  it  will  attach  the  trusts  of  the  old  to  the 
new  lease,  when  it  is  apparent  that  the  testator,  by  the  surrender, 
did  not  intend  to  disappoint  the  provisions  he  had  made  by  his  will. 

Accordingly,  in  Carte  v.  Carte,(o)  A.  being  prebendary  of  Tach- 
brooke,  granted,  in  the  year  1714,  a  lease  of  his  prebendal  lands  to 
one  of  his  children,  for  twenty-one  years,  who  declared  the  trust  for 
A.  for  so  many  years  of  the  term  as  he  should  live,  and  then  for 
such  persons  as  he  should  appoint  by  deed  or  will,  and  in  default  of 
appointment,  among  all  his  children  equally.  The  lease  was  annu- 
ally renewed,  and  similar  declarations  of  trust  were  executed  by  the 
trustee.  In  1735,  Jl.  made  his  will,  and  bequeathed  to  B.,  his  eld- 
est son,  his  residuary  estate,  whether  real  or  personal ;  and  by  a 
supplemental  clause  he  declared  that  B.  "  should  have  the  disposal 
of  the  lease  of  his  prebend  of  Tachbrooke,  made  to  his  daughter  C., 
and  that  B.  should  receive  to  himself  all  the  profits  and  advantages 
arising  and  accruing  from  it."  In  1739,  the  last  new  lease  was 
granted  to  C. ;  but  it  appeared  from  a  clause  inserted  in  the  space 
between  the  conclusion  and  signature  of  the  will,  after  the  granting 
of  the  last  lease,  that  the  will  was  republished  :  and  although  the 
cause  was  decided  upon  that  point,  Lord  Hardwicke  determining 
that  the  renewed  lease  passed  to  B.  by  the  republication,  yet  his 
Lordship  was  of  opinion,  that  if  the  will  had  not  been  republished, 
the  renewal  of  the  lease  would  not  have  been  an  ademption;  the 
subject  devised  being  a  trust,  and  the  intention  clear,  that  no 
ademption  was  meant  by  the  testator,(/>)  the  devise  extending  to  the 
whole  trust :  and  the  word  "  advantages,"  his  Lordship  observed, 
was  sufficient  to  include  all  the  advantages  and  benefits  belonging 
to  the  trust,  and  consequently,  all  renewals. 

That  Sir  William  Grant,  M.  R.  considered  the  decision  of  the  last 
case  to  have  been  made  in  consequence  of  the  devise  being  of  a  trust 
and  not  of  a  legal  term,  appears  from  his  criticism  in  the  case  of  Slat- 
terv.  Noton;(q)  in  which  he  said,  "I  think  it  will  be  found  that 
the  case  of  Carte  v.  Carte,  is  the  only  one  in  which  the  renewed  lease 
was  held  to  pass  without  any  words  directly  applicable  to  a  future 
interest;  and  that  case  is  very  distinguishable  from  the  present. 

(n)  Case  last  referred  to,  p.  179.        (o)  3  Atk.  174.     Ambl.  28.  S.  C. 
(/?)  3  Atk,  176-179.  (?)  16  Ves.  201.  stated  supra,  p.  252. 


254  Of  the  Ademption  [Cn.  V. 

Lord  Hardwicke  lays  considerable  stress  upon  the  nature  of  the  sub- 
ject of  disposition;  the  trust  of  a  term,  not  a  legal  interest;  and  says, 
that  distinguishes  it  from  the  decided  cases.  Next,  the  words  in  the 
n ill  \\rre  conceived  to  be  sufficient  to  take  in  all  the  advantages  and 
benefits  belonging  to  the  trust,  one  of  which  was  that  of  the  re- 
moval ;  and  the  devisee  could  hardly  be  said  to  have  all  the  advan- 
tages arising  and  accruing  from  the  former  lease,  unless  he  had  the 
advantage  of  substituting  the  renewed  lease  in  its  place." 

It  appears,  from  the  cases  before  stated,  upon  devises  of  legal  in- 
terests for  years,  of  which  the  testators  were  possessed)  that  the 
ground  upon  which  the  Court  of  Chancery  decided  that  renewed 
interests  in  the  property  did  not  pass  under  the  prior  wills,  was  from 
the  terms  of  the  bequests  being  insufficient  to  include  them.  And 
it  further  appears,  that  although  the  words  of  bequest  be  sufficient  in 
their  import  to  pass  the  renewed  interests,  so  as  to  prevent  an  ademp- 
tion  in  consequence  of  the  surrenders  of  the  old  leases,  yet  the 
words  will  not  be  allowed  that  effect  if  they  be  confined  to  interests 
which  testators  had  at  the  dates  of  their  wills.  If,  however,  the  ex- 
pressions have  a  prospective  or  future  operation,  the  specific  devisee 
will  not  be  disappointed  of  his  legacy  by  a  testator  surrendering  the 
old  and  taking  a  new  lease,  since  he  will  be  entitled  to  the  latter  un- 
der the  terms  of  the  bequest.  If,  then,  the  devise  were  of  "  all  the 
estate,  right  and  interest  which  the  testator  has  or  shall  have  to  come 
in  lands  held  by  him  under  a  lease  from  Jl.  at  the  time  of  his  death," 
and  the  testator  renewed  the  lease,  it  is  presumed  that  the  specific 
devisee  would  be  entitled  to  it.(r) 

So  also  if  the  old  lease  contained  a  covenant  on  the  part  of  the 
lessor  to  renew,  and  the  lessee  devised  "  all  his  right  and  interest 
under  or  by  virtue  of  the  lease"  to  B.,  it  seems  but  reasonable  that 
a  new  lease  taken  by  the  testator  after  making  his  will  should  pass  to 
J3.,  since  the  terms  of  the  bequest,  and  the  testator's  title  under  the 
old  lease,  show  that  he  intended  to  pass  whatever  interest  he  had  or 
should  have  in  consequence  of  that  lease  at  his  death  ;  and  a  renewed 
lease  is  an  interest  of  the  latter  description. (s) 

When  the  devise  is  not  of  a  specific  term  or  lease,  or  of  the  in- 
terest which  the  testator  had  at  the  date  of  his  will,  but  leasehold 
property  is  bequeathed  as  .part  of  his  general  estate,  a  renewal  of  the 
lease  by  the  testator  will  not'be  an  ademption  of  the  devise ;  for  such  a 
disposition  is  not  specific,  but  general,  passing  all  the  goods  and 
chattels  which  the  testator  should  be  possessed  of  at  his  death  ;  and 
the  mention  of  the  leasehold  estate  is  no  more  than  a  specification 
of  one  of  the  particulars  of  which  the  general  estate  consisted ;  so 
that  as  the  purchase  of  leasehold  property  after  the  will  is  made 
would  be  included  in  the  terms  of  the  bequest,  it  follows  that  a  sub- 
sequent renewal  by  the  testator  of  an  old  lease  will  equally  pass  to 
the  legatee.  In  illustration  of  this  : 

A.  devised  "aM  and  singular  his  leasehold  estate,  goods,  chattels, 
and  personal  estate  whatsoever,  to  his  daughter  B.;"  and  in  the  re- 
siduary clause  he  repeated  the  words  "all  and  singular."  A.  after- 
wards renewed  a  lease  with  the  dean  and  chapter  of  Windsor;  and 
it  was  a  question,  whether  the  renewal  of  the  lease  was  an  ademption'? 

(r)  Vide  Lord  Eldon'a  opinion  James  v.  Dean,  11  Vcs.  389.      (r)  See  last  reference. 


SECT.  II. ]J  of  Specific  Legacies.  253 

And  Lord  Hardwicke  determined  in  the  negative,  for  the  reasons 
before  mentioned,(£) 

SECONDLY,  as  to  leases  for  lives. 

The  renewal  of  leases  for  lives  will  always  create  an  ademption, 
when  such  renewal  is  made  after  the  date  of  the  will,  because  by 
the  surrender  of  the  old  leases  there  is  nothing  upon  which  the  devise 
can  operate.  It  cannot  p.ass  the  old  estates  because  that  was  deter- 
mined- by  the  surrender,  and  it  cannot  transfer  the  new  estate  ac- 
quired by  the  renewal,  since  that  being  freehold,  it  is  a  rule  that  no 
freehold  interest  can  pass  by  a  will,  but  such  which  a  testator  was 
seised  of,  or  entitled  to,  when  he  made  that  instrument. («) 

SECT.  II.  ABATEMENT  of  Specific  Legacies. 
Having  in  the  preceding  section  treated  of  those  acts  of  a  testator 
which  will  operate  as  ademptions  of  specific  legacies,  it  is  intended 
to  consider,  in  the  present  section,  the  circumstances  under  which 
specific  legatees  will  be  under  the  necessity  of  parting  with  the 
whole,  or  portions  of  their  legacies,  although  the  subjects  devised  to 
them  remained  and  were  not  adeemed  at  the  testator's  death.  This 
obligation  upon  specific  legatees  is  technically  known  by  the  term 
"  abatement." 

1.  It  is  a  rule',  as  noticed  in  the  beginning  of  the  third  chapter,(a;J 
that  specific  legatees  can  only  be  called  upon  by  the  executor  for 
abatement,  upon  failure  of  the  general  personal  estate  to  discharge 
debts.     These  legacies,  therefore,  must  be  fully  satisfied  to  the  preju- 
dice of  general  legatees.     But  when  the  personal  assets,  not  specifi- 
cally bequeathed,  are  deficient  to  pay  all  the  debts,  then  the  specific 
legatees  must  abate  or  contribute  in  proportion  to  the  value  of  their 
individual  legacies.(t/)     The  .principal  is  the  presumed  intention  of 
the  testator,  (presumed  from  his  severing  specific  parts  of  his  per- 
sonal estate  from  the  rest,  and  bequeathing  them  specifically,)  to 
give  a  preference  to  those  legatees. 

The  rule  of  abatement,  as  before  stated,  is  clearly  settled.  The 
principal  difficulty  is  to  ascertain  when  the  legacies  are  specific,  a 
subject  discussed  in  the  third  chapter,  and  from  which  it  will  appear 
what  legacies  are  and  what  are  not  specific. 

After  the  preceding  observations,  we  shall  proceed  to  consider 
instances  of  abatement,  that  are  likely  to  occur  in  practice,  and  re- 
quire particular  consideration. 

2.  Cases,  may  arise  of  stock,  or  of  the  proceeds  of  an  estate  di- 
rected to  be  sold,  being  specifically  given  in  fractional  parts,  and 
testators  may  have  miscalculated  the  amount  of  the  stock,  and  may 
have  been  mistaken   in   the  probable  .proceeds  to  arise   from  the 
estate  to  be  sold,  so  that  the  stock  and  such  proceeds  are  insuffi- 
cient to  answer  the  whole  of  the  portions  of  them  given  or  intended 
for  the  several  legatees ;  or  it  may  be  necessary  to  resort  to  those 
funds,  so  parcelled  out,  for  contribution  upon  a  deficiency  of  assets 

(0  Stirling'  v.  Lydiard,  3  Atk.  199.  Digby  v.  Legard,  Dick.  Rep.  500-503. 

(u)  See  IP.  Will.  575.  Manvood  v.  Turner,  3  P.  Will.  170.  Abney  v.  Miller, 
2  Atk.  597.- Digby  v.Legad,  Dick.  Rep,  500.  Cited  1  Bro.  C.  C.  501.  3  P.  Will, 
note  p.  22.  (x)  Supra,  p.  150. 

(y)  Slecch  v.  Tliorington,  2  Ves.  sen.  561-564.  Clifton  v.  Burt,  1  P.  Will,  680. 
Duke  of  Devon  v.  Atkins,  2  P.  Will.  383. 
VOL.  i.  K  k 


254  Of  the  Ademption  [On.  V. 

to  pay  debts,  and  in  consequence  the  application  of  the  general 
rule  in  regard  to  abatement  may  be  attended  with  uncertainty.  In 
all  those  cases  the  intention  of  the  testator,  to  be  collected  from  his 
will,  is  the  guide;- and  it  would  seem,  from  the  authorities  after  re- 
ferred to,  that,  in  general,  if  the  person  to  whom  the  last  fractional 
part  of  the  stock  or  proceeds  is  given,  be  appointed  to  take  it  as  the 
residue  or  remainder  of  the  specific  fund,  whatever  may  be  its 
amount,  then  he,  as  residuary  legatee,  will  only  be  entitled  'to  the 
surplus  of  the  fund,  after  full  satisfaction  of  the  other  aliquot  parts 
of  it  specifically  bequeathed;  so  that  such  person  in  the  character 
of  residuary  legatee  can  show  no  right  to  call  upon  the  particular 
legatees  of  fractional  parts  of  the  stock  or  proceeds  to  abate,  for 
since,  if  there  had  been  an  excess  of  the  funds,  he,  as  residuary 
legatee,  would  have  been  entitled  to  it;  so,  if  there  be  a  deficiency, 
it  is  only  equitable  that  his  share  should  be  minus  in  that  propor- 
tion. Upon  this  principle  Lord  Thurlow  determined  in  the  case  of 
Danvers  v.  Manning,(z)  before  stated. (a) 

But  although  the  last  aliquot  share  of  the  fund  be  given  by  the 
word  "  remainder"  or  "  residue,"  yet  if,  from  the  context  of  the 
will,  it  appear  to  have  been  the  testator's  intention  that  all  the  spe- 
cific legatees  should  have  certain  defined  parts  of  proportions  of  the 
subject,  by  whatever  words  they  were  bequeathed,  then  the  last 
named  legatee,  although  in  terms  a  residuary  legatee,  will  be  en- 
titled to  call  upon  the  other  legatees  of  parts  of  the  fund  to  abate 
equally  with  him  upon' their  respective  shares.  An  instance  of  this 
occurred  in  Page  v.  Leapingwell,(b)  stated  in  the  third  chapter.(c) 

3.  It  has  been  observed,  that  the  testator's  intention  is  the  prin- 
ciple upon  which  a  court  of  equity  acts  in  arrangements  of  abate- 
ment; in  conformity  with  which,  if  the  testator's  freehold  estate  be 
subject  to  debts,  a  specific  devisee  of  it  will  be  obliged  to  contri- 
bute upon  a  deficiency  of  the  general  personal  assets  with  the  spe- 
cific legatee  of  a  chattel. 

Accordingly,  if  a  freehold  estate  be  devised. to  A.  and  a  lease- 
hold to  B.  and  the  testator  die  indebted  by  bond  to  an  amount  more 
than  sufficient  to  exhaust  the  personal  fund,  B.  may  compel  A.  to 
abate  or  contribute  with  him  to  the  satisfaction  of  the  debts.  The 
reason  is,  that  both  estates  are  liable  to  those  demands,  and  it  was 
equally  the  testator's  intention  that  .B.  should  have  the  leasehold, 
as  that  A.  should  have  the  freehold  estate.  This  was  decided  in 
the  case  of  Long  v.  Short.(d)  But  the  determination  would  be  dif- 
ferent if  the  debts  were  only  by  simple  contract,  and  were  not 
charged  upon  the  real  fund ;  for  then  the  leasehold,  as  the  sole  re- 
maining estate  liable  to  those  duties,  must  be  wholly  applied  to- 
wards their  liquidation. 

From  the  preceding  observations,  the  following  remarks  occur 
respecting  estates  pour  autre  vie  of  which  a  testator  was  seised  at 
the  time  of  his  will,  and  of  his  death.  If  an  estate  limited  to  a  tes- 
tator and  his  Jmrs  during  the  life  of  A.  be  devised  by  him  to  E. 
and  a  leasehold  estate  to  C.  and  the  general  personal  assets  are  in- 

\Z\  1EI°'  C"  £oo19'22'     1  Cox>  ReP-  203'  &  C.  and  see  1  P.  Will.  404. 
(7)  ? f rViil.2^.  W  18  ^  463>  V  Su*ra>  P-  154' 


SECT.  II.]  of  Specific  Legacies.  255 

sufficient  to  pay  all  the  debts  by  specialty,  B.  and  C.  must  contri- 
bute in  proportion  to  their  legacies  in  supplying  the  deficiency;  be- 
cause both  estates  are  liable  to  those  debts,  the  freehold  pour  autre 
vie  being  placed  in  the  same  situation  in  that  respect  under  the 
statute  of  fraudulent  devises(e)  as  an  estate  of  inheritance.  But  as 
estates  pour  autre  vie  so  limited  to  the  heirs  are  not  liable  to  simple 
contract  debts,  C.  could  not  call  upon  B.  to  abate  in  respect  of 
them.  If,  however, -the  grant  of  the  estate  pour  autre  vie  had  been 
limited  to  the  testator,  his  executors,  &c.  since  that  species  of  inte- 
rest is  made  personal  estate  by  the  statute  of  frauds,(/)  if  speci- 
fically devised  as  before,  B.  would  be  liable  to  abate  with  C.  in  dis- 
charge of  debts  by  simple  contract,  as  well  as  those  by  specialty. (g) 

It  has  been  nqticed  that,  in  general,  specific  legatees  are  not 
compellable  to  abate  in  favour  of  general  legatees ;  but  to  this  rule, 
as  to  most  others,  there  is  an  exception.  For  if  the  whole  of  a  tes- 
tator's personal  property  be  disposed  of  specifically,  and  he  be- 
queath general  legacies,  the  latter  must  be  paid  out  of  the  former. 

Suppose,  then,  a  person  possessing  personal  estate  at  B.  and  C. 
only,  to  bequeath  it  to  D.  and  E.  and  then  to  give  a  legacy  to  jP. 
The  personal  estate  at  B.  and  C.  will  be  liable  to  the  payment  of 
the  legacy  in  proportion  to  their  several  amounts,  because  there 
never  were  any  other  funds  out  of  which  it  could  have  been  satis- 
fied, and  the  usual  presumption  of  preference  intended  by  testators 
in  favour  of  specific  legatees  is  repelled  in  this  instance. (h) 

4.  It  is  proper  in  conclusion,  to  refer  to  those  legacies  which  are 
in  one  sense,  specific,  and  in  another,  general.  They  have  been  de- 
scribed in  a  preceding  chapter,  as  bequests  of  money,  with  reference 
to  a  particular  fund  for  their  payment,  and  not  simply  a  gift  of  the 
specific  fund  itself.(i)  Those  legatees  have  such  a  lien  upon  the 
specific  fund  referred  to,  that  they  will  not  be  obliged  to  abate  with 
general  legatees  ;(&)  and  in  this,  as  in  the  preceding  cases,  the  testa- 
tor's intention  is  the  principle;  for  it  is  inferred,  that  he,  in  referring 
to  specific  parts  of  his  estate  for  payment  of  particular  legacies,  in- 
tended those  legacies  a  preference  to  others  which  he  had  not  so 
secured. 

Thus,  if  *#.  bequeathed  to  B.  5001.  out  of  a  debt  of  1000Z.  or  out 
of  hjs  2000Z.  three  per  cent,  consols;  B.  will  not  be  obliged  to  abate 
with  the  general  legatees  upon  a  deficiency  of  general  assets  to  pay 
all  debts  and  legacies.  This  was  so  settled  in  the  cases  below  re- 
ferred to(Z),  and  before  stated.  But  if  the  fund  out  of  which  the  lega- 
cy is  payable,  happen,  from  any  cause,  to  be  insufficient  fully  to  dis- 
charge it,  and  the  personal  estate  fall  short  to  answer  the  deficiency, 
and  wholly  to  pay  the  other  legacies,  B.  is  so  far  a  general  legatee, 

(e)  3  &  4  Will.  &  Mary,  chap.  14.  and  see  Westfaling  v.  Westfaling,  3  Atk. 
460-465.  (/)  29  Char.'  II.  chap.  3.  sect.  12. 

(#•)  Duke  of  Devon  v.  Atkins,  2  P.  Will.  381.  and  see  Atkinson  v.  Baker,  4 
Term  Rep.  230.  Campbell  v.  Sandys,  1  Scho.  &  Lefroy,  281-289,  Sec.  and 
Ripley  v.  Waternuorth,  7  Ves.  425.  441,  See. 

(A)  By.the  Chancellor  in  Sayer  v.  tteyer,  Pre.  Ch.  393. 

(z)  See  the  beginning  of  chap.  3.  p.  150,  and  pp.  168.  181. 

(£)  Acton  v.  Acton,  1  Menv.  178,  stafed*sz*/;ra,  p.  183.  Smallbone  v.  Brace, 
Finch.  303. 

(/)  Roberts  v.  Pocock,  4  Ves.  150—160,  ante-,  p.  181.  and  Lambert  v.  Lambert, 
11  Ves.  607,  supra,  p.  171. 


256  Of  General  Legacies,  [Cn.  VI. 

as  that  he  may  oblige  those  other  legatees  to  abate  and  contribute 
with  him  their  proportions  of  the  deficiency  in  the  fund.  B.  however, 
can  be  in  no  better  condition  than  a  specific  legatee,  so  that  if  the 
other  general  assets  be  insufficient  to  pay  all  the  debts,  he  must 
abate  with  other  specific  legatees,  and  in  this  respect  he  is  to  be 
considered  a  specific  legatee,  and  entitled  to  call  for  such  contri- 
bution, (m) 

CHAPTER  VI. 

Of  General  Legacies,  and  their  Jldemption,  and  of  Parol  Evi- 
dence, in  certain  cases  on  that  subject. 

SECT.  I.  Of  the  ademption  of  legacies  given  as  portions  to  chil- 
dren by  their  father. 

\.—Wrhen  the  children  are  legitimate. 
2. — Exceptions  to  the  presumption  of  ademption  in  cases 
under  the  last  article. 

SECT.  II.  Of  the  ademption  of  Lega'cies  by  subsequent  advance- 
ments when  the  legatees  are  considered  strangers 
•  to  the  testator,  and  the  legacies  not  portions. 

1. — When  the  legacies  are  mere  bounties;  and  of  bequests 
to  natural  children  by  their  putative  father. 

2. —  When  a  testator  has  placed  himself  m  loco  parentis. 

3  and  4. — Of  the  admissibility  of  parol  evidence  on  the 
last  subject;  as  also  to  prove  an  intention  to  adeem 
when  the  testator  is,  or  is  considered  to  be,  a  stran- 
ger to  the  legatee. 

5. — Of  the  sufficiency  and  insufficiency  of  such  evidence 
when  admissible. 

6. — And  the  different  degrees  of  importance  attached  to 
parol  evidence  in  detailing  declarations  of  testators, 
in  regard  to  the  times  when  and  to  whom  they  were 
made. 

A  LEGACY  is  general  when  it  is  so  given  as  not  to  amount  to  a  be- 
quest of  a  specific  part  of  a  testator's  personal  estate ;  as  of  a  sum  of 
money  generally,  or  out  of  the  testator's  personal  estate,  and  the 
like. (a) 

In  the  beginning  of  the  last  chapter  it  was  attempted  to  explain 
the  distinction  of  ademption  as  applicable  to  a  specific  or  to  a  ge- 
neral legacy  not  given  as  a  portion..    It  was  considered  that  an  in- 
tention to  adeem  by  a  testator's  receipt  of  the  subject  specifically 
given  was  immaterial,  since  the  legacy  must  be  necessarily  defeated, 
whatever  the  testator's  meaning  or  purpose  might  have  been,  because 
thing  was  extinct,  and  nothing  jemained  at  his  death  to  which 
sstamentary  description  cpuld  apply.     But  that  with  respect  to 
general  legacies,  not  given  as  portions,  which  are  payable  out  of  the 

(m)  4  Ves.  160.       (a)  See  chap.  II.  passim,  and  particularly  pp.  49.  -50.  60.'  74. 


SECT.  VI.]  and  their  Ademption.  257 

general  personal  estate,  intention  is  of  the  very  essence  of  ademp- 
tion; since,  -whether  an  advancement  by  a  testator  during  his  life 
should  or  should  net  be  a  satisfaction,  or  in  substitution  of  what  he 
had  bequeathed  to  the  person  so  advanced,  is  a  question  of  fact,  which 
can  only  be  resolved  by  reference  to  the' intention  of  the  donor. (6) 
In  treating  upon  the  subjects  of  the  present  chapter  we  shall  begin, 

SECT.  I.  With  the  ademptions  apportions  given  by  will. 

1.  It  is  now  the  settled  doctrine  of  a  Court  of  Equity,  that  where 
a  father  gives  a  legacy  to  a  legitimate  child,  without  stating  the  pur- 
pose for  which  it  was  given,  he  is  to  be  presumed  as  having  intended 
it  as  a  portion,  whether  he  call  it  so  or  not ;  and  that  if  he  afterwards 
advance  a  portion  upon  the  child's  marriage,  it  is  a  satisfaction  of  .the 
legacy,  the  advancement  and  the  legacy  being  .for  the  same  purpose. 
And  it  will  be  a  complete  ademption  of  the  legacy,  although  the  sum 
advanced  be  riot  equal  to,  but  less  than  the  testamentary  portion; 
and  for  this  reason,  that  the  father,  owing  his  child  a  debt  of  nature, 
is  sole  judge  of  the  amount  of  the  provision  by  which  he  intends  to 
satisfy  it ;  and  although  at  the  date  of  his  will  he  conceived  that  he 
could  not  discharge  his  moral  obligation  with  less  than,  suppose 
10,000/. ;  yet,  that  by  a  change  of  circumstances,  and  of  his  senti- 
ments upon  the  extent  of  tha*t  obligation,  he  thought  that  it  might 
be  satisfied  by  an  advance  of  a  portion  of  5000Z.(c)  In  ex  parte  Du- 
bost,(d")  Lord  Eldon  seems  to  consider  the  doctrine  of  the  Court  to 
be  this :  that  where  a. father  gives  a  legacy  to  a  child  it  must  be  un- 
derstood as  a  poi'tion,  although  not  so  described,  because  it  is  a  pro- 
vision by  a  parent  for  his  child.  And  that  the  father  afterwards  ad- 
vancing a  portion  for  that  child,  will  by  that  act  adeem  the  legacy, 
although  there  may  be  slight  circumstances  of  difference  between 
the  advancement  and  the  portion,  and  a*  difference  in  amount.(e) 

We  shall  next  proceed  to  adduce  authorities  in  support  of  the 
above  observations. 

FIRST,.  Of  the  advancement  by  a  parent  to  his  child  being  primd 
facie  an  ademption  of  a  legacy  given  to  it  by  his  will. 

In  Elkenhead's  ca.se^(f)  a  father  bequeathed  1000Z.  a  piece  to  his 
five  daughters.  He  afterwards  advanced,  upon  the  marriage  of  one 
of  them  100Q/.,  and  it  was  determined  that  her  legacy  or  portion  was 
adeemed. 

So  also  in  Ward  \.  Lant,(g)  A.  bequeathed  50001!.*  a  piece  to  his 
four  daughters  as  their  portions,  to  be  raised  out  of  his  real  estates ; 
and  he  afterwards  advanced  to.  one.  of  them  upon  marriage  4000Z.; 
which  was  decided  to  bean  ademption  of  the,  legacy. 

The  Master  of  the  Rolls  held  the  same  doctrine  in  Scotton  v. 
Scotton,(h}  and  in  Tapper  \.  Chalcrqft,(i)  a  case  before  Lord  Hard- 
wicke  in  the  year  1739,  his  Lordship  determined,  that  a  legacy  given 
to  a  daughter  by  her  father  was  adeemed  by  his  subsequent  advance- 
ment of  a  marriage  portion.  Again, 

In  Watson  v.  Lord  Lincoln,(k)  Mr.  Pelham  having  four  daugh- 
ters, appointed  by  will  under  a  power  in  his  marriage  settlement 

(6)  Chap.  V.  pp.  238.  253.  254.  (c)  18  Ves.  151.  (r/)  Ibid.  153. 

(e)  See  2  Atk.  518.  and  17  Ves.  191.    2  Cox's  Ca.  220. 

(/)  Cited  2  Vern.  257.  and  see  Farnham  v.  Phillifis,  2  Atk.  215. 

(g)  Pre,  Ch.  182.     (A)  1  Stra.  236.      (i)  Cited'2  Atk.  492.     (/t)  Ambl.  325. 


258  General  Legacies,  [Cn.  VI. 

10  OOOZ.  among  them,  with  the  exception  of  Lady  Lincoln,  whom  he 
had  advanced.  And  he  bequeathed  his  personal  estate  amongst  his 
daughter's,  again  excluding  Lady  Lincoln.  After  this,  Grace,  one 
of  the  daughters,  married  Mr.  Watson ;  on  which  occasion  her  father 
advanced  to  her  20,000/.  by  applying  part  of  the  10,OOOZ.  and  other- 
wise. One  of  the  questions  was,  whether  that  advancement  was 
an  ademption  of  the  legacy  '!•  And  Lord  Hardwicke  decided  in  the 
affirmative,  upon  two  grounds ;  first,  because  both  provisions  being, 
for  the  same  purpose,  viz.  a  portion,  a  court  of  equity  inclined 
against  double  portions  :  arid  secondly,  because  the  advancement 
was  a  performance  of  the  father's  moral  obligation  to  provide  for  his 
child,  which  he  once  intended  fo  do  by  his  will. 

And  in  Grave  v.  Salisbury, (I]  Lord  Thurlow  admits  the  doctrine 
to  be  settled  as.  before  stated,  although  he  regrets  it.  His  expres- 
sions are,  "  the  Court  has  certainly  presumed  against  double  portions; 
and  although  it  has  encouraged  that  conjecture  with  a  degree  of 
sharpness  to  which  I  cannot  reconcile  myself,  yet  wherever  a  provi- 
sion is  made  directly,  or  as  a  portion  by  a  parent  or  person  in  loco 
parentis,  I  will  not  displace  the  rule  laid  down  by  wiser  men,  viz. 
that  it  "shall  be  a  satisfaction,  however  reluctant  I  may  be  to  follow 
it." 

The  case  of  Upton  v.  Prince(m)  may  here  be  introduced,  which 
is  in  fact  a  case  of  ademption,  though  one  in  which  the  testamentary 
provision  was  made  subsequently  to  the  advancement,  which  at  the 
making  of  the  will,  the  testator  had  forgotten  or  mistaken:  the  receipt 
of  the  sum  advanced  expressly  acknowledged  the  advancement  to 
be  in  part  of  any  testamentary  provision  there  had  been,  or  which 
should  thereafter  be  made  by  the  father. 

In  that  case,  William  Prince  had  issue  two  sons,  William  and 
Peter,  and  four  daughters,  and,  in  his  lifetime,  advanced  each  of 
them  1500Z.  and  took  from  them  each  a  receipt  in  the  following 
words  :  "Received  of  my  father,  William  Prince,  the  sum  of  1500Z. 
which  I  do  hereby  acknowledge  to  be  on  account  and  in  part  of 
what  he  has  given,  or  shall  in  or  by  his  last  will  give  unto  me  his 
son."  Some  time  after,  William  Prince  made  his  will,  which  con- 
tained the  following  words:  "And whereas, I  have  heretofore  paid  to, 
given  or  advanced  with  my  children,  William,  Elizabeth',  and  Sarah, 
the  sum  of  1500Z.  a  piece;  now,  I  do  hereby  in  like  manner,  give 
and  bequeath  unto  my  three  other  children,  Peter,  Mary,  and  Anne, 
the  several  sums  of  1500/.  a  piece ;"  and  he  then  gave  the  residue 
equally  amongst  his  children.  William  Prince,  the  father,  died 
without  revoking  his  5vill,  and  it  was  insisted  by  Peter,  that  the  re- 
ceipt given  to  his  father  could  not  control  the  express  gift  of  the 
father  subsequent ;  and  the  father's  omitting  Peter  in  the  mention  of 
advancement  showed  he  plainly  intended  a  difference  between  them ; 
the  receipts  given  by  both,  and  the  case  of  both  being  the  same. 
But  the  Lord  Chancellor  decreed  the  1500Z.  received  by  Peter  in  his 
father's  lifetime,  .to  be  a  satisfaction  for  what  the  father  gave  him 
by  his  will;  and  that  he  should  not  have  another  15001  upon  the 
latter  words. 

(01  Bro.  C.  C.  427.  and  Jenkins  v.  Powell,  2  Vern.  115. 
(m)  Cas.  Tern,  Tab.  71,  3d  edit. 


t 

SECT.  I.]  and  their  Ademption.  259 

The  before  mentioned  cases  and  opinions  sufficiently  prove  the 
accuracy  of  Lord  Eldon's  first  proposition  in  ex  parte  Dubost, 
viz.  that  where  a  father  gives  a  legacy  to  a  child,  it  is  to  be  under- 
stood as  a  portion,  although  it  be  not  so  expressed ;  and  that  a  sub- 
sequent advancement  by  him  will  be  an  ademption  of  the  bequest. 
The  authorities  which  have  been  produced  were  of  advancements 
larger  than,  or  equal  to,  the  testamentary  .portions,  but  the  cases 
next  adduced  will  prove, — 

SECONDLY,  his  Lordship's  remaining  proposition,  that  slight  cir- 
cumstances of  difference  between  the  advancement  and  the  portion 
will  not  repel  the  presumed  intention. 

Suppose  then  the  advancement  to  be  of  inferior  amount  to  the 
portion  given  by  will ;  it  has  been  decided,  for  the  reasons  before 
stated, (n)  that  the  former  will  be  a  complete  ademption  of  the  latter. 

In  Hartop  v.  Whitmore,(o)  A.  bequeathed  to  his  daughter  a  portion 
of  3001.  and  then  gave  her  upon  marriage  a  portion  of  2001.  He 
lived  four  years  afterwards  without  having  revoked  his  will,  and  Lord 
Parker,  C.  determined  that  the  advancement  was  a  total  ademption 
of  the  testamentary  portion.  And  with  respect  to  the  objection  which 
was  taken,  that  If  A.  had  meant  by  the  advancement  to  adeem  the 
legacy,  he  would  not  have  lived  four  years  after  that  transaction  with- 
out revoking  the  bequest,  his  Lordship  answered,  there  was  no  ne- 
cessity for  A.  to  make  such  revocation,  since  he  had  effectually  done 
so  by  the  advancement. 

So  also  in  Clarke  v.  Burgoine,(p)  B.  gave  to  his  daughter  two  le- 
gacies amounting  to  7000Z.  He  afterwards,  upon  the  marriage  of  the 
legatee,  paid  20001.  in  part  of  a  portion,  and  covenanted  to  pay  4000L 
more  at  his  death.  It-*vas  declared  by  Lord  Camden,  C.,  that  B. 
having  advanced  a  portion  of  60001.  on  the  marriage  of  his  daugh- 
ter, viz.  20001.  in  prcesenti,  and  40001.  at  his  decease,  the  two  lega- 
cies of  70001.  were  adeemed. 

Instances  in  which  the  advancement  of  a  less  sum  may  only  be  a 
partial  ademption  of  a  testamentary  portion,  are  where  a  testator  has 
declared  his  intention,  either  by  writing  or  verbally,  that  the  advance 
shall  be  restricted. to  that  purpose. 

This  occurred  in  Hoskins  v.  Hoskins,(q)  in  which  case  it  was  pro- 
ved that  the  father-  in  paying  6501.  for  the  purchase  of  a  cornet  of 
horse  for  his  son,  intended  that  the  sum  should  be  deducted  out  of 
750/.  which  he  had  left  him  by  will. 

If  a  difference  in  amount  between  the  advancement  and  the  tes- 
tamentary portion  will  not  repel  the  presumed  ademption  by  the  for- 
mer, it  seems  to  follow  that  the  slighter  difference  between  them  of 
the  times  of  payment,  when  both  are  certain,  will  not  have  that  effect. 

Accordingly  in  Hartopp  v.  Hartopp,(r)  A.  bequeathed  3000/.  for 
the  portions  of  his  younger  son  and  daughter  B.  and  C.,  and  such 
other  children  as  he  might  have,  in  equal  shares ;  to  be  vested  in- 
terests in  daughters  at  twenty-one,  or  on  marriage,  with  the  consent 

(n)  P.  257. 

(o)  1  P.  Will.  681.  and  see  Mr.  Cox's  note  for  a  further  statement,  though  the 
principle  of  the  decision  is  the  same,  and  agrees  with  the  report. 
(fi)  1  Dick.  353. 

(?)  Pre.  Ch.  263.  and  see  Thellusson  v.  Woodford,  4  Madd.  420.  S,  P. 
(r)  irVes.  184. 


254  Of  the  Ademption  [Cn.  V. 

to  pay  debts,  and  in  consequence  the  application  of  the  general 
rule  in  regard  to  abatement  may  be  attended  with  uncertainty.  In 
all  those  cases  the  intention  of  the  testator,  to  be  collected  from  his 
will,  is  the  guide;  and  it  would  seem,  from  the  authorities  after  re- 
ferred to,  that,  in  general,  if  the  person  to  whom  the  last  fractional 
part  of  the  stock  or  proceeds  is  given,  be  appointed  to  take  it  as  the 
residue  or  remainder  of  the  specific  fund,  whatever  may  be  its 
amount,  then  he,  as  residuary  legatee,  will  only  be  entitled  to  the 
surplus  of  the  fund,  after  full  satisfaction  of  the  Other  aliquot  parts 
of  it  specifically  bequeathed;  so  that  such  person  in  the  character 
of  residuary  legatee  can  show  no  right  to  call  upon  the  particular 
legatees  of  fractional  parts  of  the  stock  or  proceeds  to  abate,  for 
since,  if  there  had  been  an  excess  of  the  funds,  he,  as  residuary 
legatee,  would  have  been  entitled  to  it;  so,  if  there  be  a  deficiency, 
it  is  only  equitable  that  his  share  should  be  minus  in  that  propor- 
tion. Upon  this  principle  Lord  Thurlow  determined  in  the  case  of 
Danvers  v.  Manning,(z]  before  stated.  (a) 

But  although  the  last  aliquot  share  of  the  fund  be  given  by  the 
word  "remainder"  or  "residue,"  yet  if,  from  the  context  of  the 
will,  it  appear  to  have  been  the  testator's  intention  that  all  the  spe- 
cific legatees  should  have  certain  defined  parts  of  proportions  of  the 
subject,  by  whatever  words  they  were  bequeathed,  then  (he  last 
named  legatee,  although  in  terms  a  residuary  legatee,  will  be  en- 
titled to  call  upon  the  other  legatees  of  parts  of  the  fund  to  abate 
equally  with  him  upon  their  respective  shares.  An  instance  of  this 
occurred  in  Page  v.  Leapingwell,(b)  stated  in  the  third  chapter.(c) 

3.  It  has  been  observed,  that  the  testator's  intention  is  the  prin- 
ciple upon  which  a  court  of  equity  acts  in  arrangements  of  abate- 
ment; in  conformity  with  which,  if  the  testator's  freehold  estate  be 
subject  to  debts,  a  specific  devisee  of  it  will  be  obliged  to  contri- 
bute upon  a  deficiency  of  the  general  personal  assets  with  the  spe- 
cific legatee  of  a  chattel. 

Accordingly,  if  a  freehold  estate  be  devised.  to  A.  and  a  lease- 
hold to  B.  and  the  testator  die  indebted  by  bond  to  an  amount  more 
than  sufficient  to  exhaust  the  personal  fund,  B.  may  compel  A.  to 
abate  or  contribute  with  him  to  the  satisfaction  of  the  debts.  The 
reason  is,  that  both  estates  are  liable  to  those  demands,  and  it  was 
equally  the  testator's  intention  that  B.  should  have  the  leasehold, 
as  that  A.  should  have  the  freehold  estate.  This  was  decided  in 
the  case  of  Long  v.  Short.(d)  But  the  determination  would  be  dif- 
ferent if  the  debts  were  only  by  simple  contract,  and  were  not 
charged  upon  the  real  fund  ;  for  then  the  leasehold,  as  the  sole  re- 
maining estate  liable  to  those  duties,  must  be  wholly  applied  to- 
wards their  liquidation. 

From  the  preceding  observations,  the  following  remarks  occur 
respecting  estates  pour  autre  vie  of  which  a  testator  was  seised  at 
the  time  of  his  will,  and  of  his  death.  If  an  estate  limited  to  a  tes- 
tator and  his  heirs  during  the  life  of  A.  be  devised  by  him  to  B. 
and  a  leasehold  estate  to  C.  and  the  general  personal  assets  are  in- 


9* 

f  P 


203»  s-  c-  *»*  see 


SECT.  II.]  of  Specific  Legacies.  255 

sufficient  to  pay  all  the  debts  by  specialty,  B.  and  C.  must  contri- 
bute in  proportion  to  their  legacies  in  supplying  the  deficiency;  be- 
cause both  estates  are  liable  to  those  debts,  the  freehold  pour  autre 
vie  being  placed  in  the  same  situation  in  that  respect  under  the 
statute  of  fraudulent  devises(e)  as  an  estate  of  inheritance.  But  as 
estates  pour  autre  vie  so  limited  to  the  heirs  are  not  liable  to  simple 
contract  debts,  C.  could  not  call  upon  B.  to  abate  in  respect  of 
them.  If,  however,- the  grant  of  the  estate  pour  autre  vie  had  been 
limited  to  the  testator,  his  executors,  &c.  since  that  species  of  inte- 
rest is  made  personal  estate  by  the  statute  of  frauds,(/)  if  speci- 
fically devised  as  before,  B.  would  be  liable  to  abate  with  C.  in  dis- 
charge of  debts  by  simple  contract,  as  well  as  those  by  specialty. (g) 

It  has  been  nqticed  that,  in  general,  specific  legatees  are  not 
compellable  to  abate  in  favour  of  general  legatees;  but  to  this  rule, 
as  to  most  others,  there  is  an  exception.  For  if  the  whole  of  a  tes- 
tator's personal  property  be  disposed  of  specifically,  and  he  be- 
queath general  legacies,  the  latter  must  be  paid  out  of  the  former. 

Suppose,  then,  a  person  possessing  personal  estate  at  B.  and  C. 
only,  to  bequeath  it  to  D.  and  E.  and  then  to  give  a  legacy  to  jP. 
The  personal  estate  at  B.  and  C.  will  be  liable  to  the  payment  of 
the  legacy  in  proportion  to  their  several  amounts,  because  there 
never  were  any  other  funds  out  of  which  it  could  have  been  satis- 
fied, and  the  usual  presumption  of  preference  intended  by  testators 
in  favour  of  specific  legatees  is  repelled  in  this  instance. (h) 

4.  It  is  proper  in  conclusion,  to  refer  to  those  legacies  which  are 
in  one  sense,  specific,  and  in  another,  general.  They  have  been  de- 
scribed in  a  preceding  chapter,  as  bequests  of  money,  with  reference 
to  a  particular  fund  for  their  payment,  and  not  simply  a  gift  of  the 
specific  fund  itself.(t)  Those  legatees  have  such  a  lien  upon  the 
specific  fund  referred  to,  that  they  will  not  be  obliged  to  abate  with 
general  legatees  ;(/c)  and  in  this,  as  in  the  preceding  cases,  the  testa- 
tor's intention  is  the  principle;  for  it  is  inferred,  that  he,  in  referring 
to  specific  parts  of  his  estate  for  payment  of  particular  legacies,  in- 
tended those  legacies  a  preference  to  others  which  he  had  not  so 
secured. 

Thus,  if  .#.  bequeathed  to  B.  500Z.  out  of  a  debt  of  1000J.  or  out 
of  his  2000Z.  three  per  cent,  consols;  B.  will  not  be  obliged  to  abate 
with  the  general  legatees  upon  a  deficiency  of  general  assets  to  pay 
all  debts  and  legacies.  This  was  so  settled  in  the  cases  below  re- 
ferred to(J),  and  before  stated.  But  if  the  fund  out  of  which  the  lega- 
cy is  payable,  happen,  from  any  cause,  to  be  insufficient  fully  to  dis- 
charge it,  and  the  personal  estate  fall  short  to  answer  the  deficiency, 
and  wholly  to  pay  the  other  legacies,  B.  is  so  far  a  general  legatee, 

(<?)  3  8c  4  Will.  &  Mary,  chap.  14.  and  see  Westfaling  v.  Westfaling,  3  Atk. 
460-465.  (/)  29  Char.'  II.  chap.  3.  sect.  12. 

(g-)  Duke  of  Devon  v.  Atkins,  2  P.  Will.  381.  and  see  Atkinson  v.  Baker,  4 
Term  Rep.  230.  Camfibell  v.  Sandys,  1  Scho.  &  Lefroy,  281-289,  8cc.  and 
Rijiley  v.  Waterworth,  7  Ves.  425.  441,  &c. 

(A)  By-the  Chancellor  in  Sayer  v.  ijayer,  Pre.  Ch.  393. 

(z)  See  the  beginning  of  chap.  3.  p.  150,  and  pp.  168.  181. 

(k)  Acton  v.  Acton,  1  Meriv.  178,  stafecPsw/zra,  p.  183.  Smallbone  v.  Brace, 
Finch.  303. 

(/)  Roberts  v.  Pococfc,  4  Ves.  150—160,  ante-,  p.  181.  and  Lambert  v.  Lambert, 
11  Ves.  607,  sufira,  p.  171. 


256  Of  General  Legacies,  [Cn.  VI. 

as  that  he  may  oblige  those  other  legatees  to  abate  and  contribute 
with  him  their  proportions  of  the  deficiency  in  the  fund.  B.  however, 
mil  be  in  no  better  condition  than  a  specific  legatee,  so  that  if  the 
other  general  assets  be  insufficient  to  pay  all  the  debts,  he  must 
abate  with  other  specific  legatees,  and  in  this  respect  he  is  to  be 
considered  a  specific  legatee,  and  entitled  to  call  for  such  contri- 
bution, (m) 


CHAPTER  VI. 

Of  General  Legacies,  and  their  Ademption,  and  of  Parol  Evi- 
dence, in  certain  cases  on  that  subject. 

SECT.  I.  Of  the  ademption  of  legacies  given  as  portions  to  chil- 
dren by  their  father. 

1. — When  the  children  are  legitimate. 
2. — Exceptions  to  the  presumption  of  ademption  in  cases 
'under  the  last  article. 

SECT.  II.  Of  the  ademption  of  Legacies  by  subsequent  advance- 
ments when  the  legatees  are  considered  strangers 
•  to  the  testator,  and  the  legacies  not  portions. 

1. — When  the  legacies  are  mere  bounties;  and  of  bequests 
to  natural  children  by  their  putative  father. 

2. —  When  a  testator  has  placed  himself  m  loco  parentis. 

3  and  4. — Of  the  admissibility  of  parol  evidence  on  the 
last  subject;  as  also  to  prove  an  intention  to  adeem 
when  the  testator  is,  or  is  considered  to  be,  a  stran- 
ger to  the  legatee. 

5. — Of  the  sufficiency  and  insufficiency  of  such  evidence 
when  admissible. 

6. — And  the,  different  degrees  of  importance  attached  to 
parol  evidence  in  detailing  declarations  of  testators, 
in  regard  to  the  times  when  and  to  whom  they  were 
made. 


A  LEGACY  is  general  when  it  is  so  given  as  not  to  amount  to  a  be- 
quest of  a  specific  part  of  a  testator's  personal  estate ;  as  of  a  sum  of 
money  generally,  or  out  of  the  testator's  personal  estate,  and  the 
like.(a). 

In  the  beginning  of  the  last  chapter  it  was  attempted  to  explain 
the  distinction  of  ademption  as  applicable  to  a  specific  or  to  a  ge- 
neral legacy  not  given  as  a  portion..  It  was  considered  that  an  in- 
tention to  adeem  by  a  testator's  receipt  of  the  subject  specifically 
given  was  immaterial,  since  the  legacy  must  be  necessarily  defeated, 
whatever  the  testator's  meaning  or  purpose  might  have  been,  because 
the  thing  was  extinct,  and  nothing  semained  at  his  death  to  which 
the  testamentary  description  could  apply.  But  that  with  respect  to 
general  legacies,  not  given  as  portions,  which  are  payable  out  of  the 

(m)  4  Ves,  160.       (a)  See  chap.  II.  passim,  and  particularly  pp.  49.  50.  60.' 74. 


SECT.  VI.]  and  their  Ademption.  257 

general  personal  estate,  intention  is  of  the  very  essence  of  ademp- 
tion ;  since,  -whether  an  advancement  by  a  testator  during  his  life 
should  or  should  net  be  a  satisfaction,  or  in  substitution  of  what  he 
had  bequeathed  to  the  person  so  advanced,  is  a  question  of  fact,  which 
can  only  be  resolved  by  reference  to  the*  intention  of  the  donor. (6) 
In  treating  upon  the  subjects  of  the  present  chapter  we  shall  begin, 

SECT.  I.  With  the  ademptions  apportions  given  by  will. 

1.  It  is  now  the  settled  doctrine  of  a  Court  of  Equity,  that  where 
a  father  gives  a  legacy  to  a  legitimate  child,  without  stating  the  pur- 
pose for  which  it  was  given,  he  is  to  be  presumed  as  having  intended 
it  as  a  portion,  whether  he  call  it  so  or  not;  and  that  if  he  afterwards 
advance  a  portion  upon  the  child's  marriage,  it  is  a  satisfaction  of  .the 
legacy,  the  advancement  and  the  legacy  being  .for  the  same  purpose. 
And  it  will  be  a  complete  ademption  of  the  legacy,  although  the  sum 
advanced  be  not  equal  to,  but  less  than  the  testamentary  portion; 
and  for  this  reason,  that  the  father,  owing  his  child  a  debt  of  nature, 
is  sole  judge  of  the  amount  of  the  provision  by  which  he  intends  to 
satisfy  it ;  and  although  at  the  date  of  his  will  he  conceived  that  he 
could  not  discharge  his  moral  obligation  with  less  than,  suppose 
10,000/. ;  yet,  that  by  a  change  of  circumstances,  and  of  his  senti- 
ments upon  the  extent  of  tha*t  obligation,  he  thought  that  it  might 
be  satisfied  by  an  advance  of  a  portion  of  5000Z.(c)  In  ex  parte  Du- 
bost,(d)  Lord  Eldon  seems  to  consider  the  doctrine  of  the  Court  to 
be  this :  that  where  a. father  gives  a  legacy  to  a  child  it  must  be  un- 
derstood as  a  portion,  although  not  so  described,  because  it  is  a  pro- 
vision by  a  parent  for  his  child.  And  that  the  father  afterwards  ad- 
vancing a  portion  for  that  child,  will  by  that  act  adeem  the  legacy, 
although  there  may  be  slight  circumstances  of  difference  between 
the  advancement  and  the  portion,  and  a*  difference  in  amount.(e) 

We  shall  next  proceed  to  adduce  authorities  in  support  of  the 
above  observations. 

FIRST,.  Of  the  advancement  by  a  parent  to  his  child  being  primd 
facie  an  ademption  of  a  legacy  given  to  it  by  his  will. 

In  Elkenhead's  c&se^f)  a  father  bequeathed  1000JL  a  piece  to  his 
five  daughters.  He  afterwards  advanced,  upon  the  marriage  of  one 
of  them  100QZ.,  and  it  was  determined  that  her  legacy  or  portion  was 
adeemed. 

So  also  in  Ward  v.  Lant,(g)  A.  bequeathed  5000Z*  a  piece  to  his 
four  daughters  as  their  portions,  to  be  raised  out  of  his  real  estates ; 
and  he  afterwards  advanced  to.  one.  of  them  upon  marriage  4000/.; 
which  was  decided  to  bean  ademption  of  the,  legacy. 

The  Master  of  the  Rolls  held  the  same  doctrine  in  Scotton  v. 
Scotton,(h)  and  in  Tapper  v.  <Chalcroft,(i)  a  case  before  Lord  Hard- 
wicke  in  the  year  1739,  his  Lordship  determined,  that  a  legacy  given 
to  a  daughter  by  her  father  was  adeemed  by  his  subsequent  advance- 
ment of  a  marriage  portion.  Again, 

In  Watson  v.  Lord  Lincoln,(k)  Mr.  Pelham  having  four  daugh- 
ters, appointed  by  will  under  a  power  in  his  marriage  settlement 

(6)  Chap.  V.  pp.  238.  253.  254.  (c)  18  Ves.  151.  (d)  Ibid.  153. 

(0  See  2  Atk.  518.  and  17  Ves.  191.    2  Cox's  Ca.  220. 

(/)  Cited  2  Vern.  257.  and  see  Farnham  v.  Pliillifis,  2  Atk.  215. 

(£•)  Prei  Ch.  182.     (A)  1  Stra.  236.      (i)  Cited  2  Atk.  492,     (£)  Ambl.  325. 


258  General  Legacies,  [On.  VI. 

1 0  OOO/.  among  them,  with  the  exception  of  Lady  Lincoln,  whom  he 
had  advanced.  And  he  bequeathed  his  personal  estate  amongst  his 
daughters,  again  excluding  Lady  Lincoln.  After  this,  Grace,  one 
of  tiie  daughters,  married  Mr.  Watson;  on  which  occasion  her  father 
advanced  to  her  20,000/.  by  applying  part  of  the  10,OOOZ.  and  other- 
wise. One  of  the  questions  was,  whether  that  advancement  was 
an  ademption  of  the  legacy  9  And  Lord  Hardwicke  decided  in  the 
affirmative,  upon  two  grounds ;  first,  because  both  provisions  being, 
for  the  same  purpose,  viz.  a  portion,  a  court  of  equity  inclined 
against  double  portions-:  and  secondly,  because  the  advancement 
was  a  performance  of  the  father's  moral  obligation  to  provide  for  his 
child,  which  he  once  intended  fo  do  by  his  will. 

And  in  Grave  \.  Salisbury, (1}  Lord  Thurlow  admits  the  doctrine 
to  be  settled  as.  before  stated,  although  he  regrets  it.  His  expres- 
sions are,  "  the  Court  has  certainly  presumed  against  double  portions; 
and  although  it  has  encouraged  that  conjecture  with  a  degree  of 
sharpness  to  which  I  cannot  reconcile  myself,  yet  wherever  a  provi- 
sion is  made  directly,  or  as  a  portion  by  a  parent  or  person  in  loco 
parentis,  I  will  not  displace  the  rule  laid  down  by  wiser  men,  viz. 
that  it  shall  be  a  satisfaction,  however  reluctant  I  may  be  to  follow 
it." 

The  case  of  Upton  v.  Prince(m)  may  here  be  introduced,  which 
is  in  fact  a  case  of  ademption,  though  one  in  which  the  testamentary 
provision  was  made  subsequently  to  the  advancement,  which  at  the 
making  of  the  will,  the  testator  had  forgotten  or  mistaken:  the  receipt 
of  the  sum  advanced  expressly  acknowledged  the  advancement  to 
be  in  part  of  any  testamentary  provision  there  had  been,  or  which 
should  thereafter  be  made  by  the  father. 

In  that  case,  William  Prince  had  issue  two  sons,  William  and 
Peter,  and  four  daughters,  and,  in  his  lifetime,  advanced  each  of 
them  1500Z.  and  took  from  them  each  a  receipt  in.  the  following 
words  :  "Received  of  my  father,  William  Prince,  the  sum  of  15001. 
which  I  do  hereby  acknowledge  to  be  on  account  and  in  part  of 
what  he  has  given,  or  shall  in  or  by  his  last  will  give  unto  me  his 
son."  Some  time  after,  William  Prince  made  his  will,  which  con- 
tained the  following  words:  "And  whereas,  I  have  heretofore  paid  to, 
given  or  advanced  with  my  children,  William,  Elizabeth;  and  Sarah, 
the  sum  of  1500Z.  a  piece ;  now,  I  do  hereby  in  like  manner,  give 
and  bequeath  unto  my  three  other  children,  Peter,  Mary,  and  Anne, 
the  several  sums  of  1500Z.  a  piece;"  and  he  then  gave  the  residue 
equally  amongst  his  children.  William  Prince,  the  father,  died 
without  revoking  his  tvill,  and  it  was  insisted  by  Peter,  that  the  re- 
ceipt given  to  his  father  could  not  control  the  express  gift  of  the 
father  subsequent ;  and  the  father's  omitting  Peter  in  the  mention  of 
advancement  showed  he  plainly  intended  a  difference  between  them; 
the  receipts  given  by  both,  and  the  case  of  both  being  the  same. 
But  the  Lord  Chancellor  decreed  the  1500Z.  received  by  Peter  in  his 
father's  lifetime,  to  be  a  satisfaction  for  what  the  father  gave  him 
by  his  will ;  and  that  he  should  not  have  another  1 500Z.  upon  the 
latter  words. 

(0  1  Bro.  C.  C.  427.  and  Jenkins  v.  Powell,  2  Vern.  115. 
(»z)  Cas.  Tern,  Tab.  71.  3d  edit. 


SECT.  I.]  and  their  Ademption.  259 

The  before  mentioned  cases  and  opinions  sufficiently  prove  the 
accuracy  of  Lord  Eldon's  first  proposition  in  ex  parte  Dubost, 
viz.  that  where  a  father  gives  a  legacy  to  a  child,  it  is  to  be  under- 
stood as  a  portion,  although  it  be  not  so  expressed ;  and  that  a  sub- 
sequent advancement  by  him  will  be  an  ademption  of  the  bequest. 
The  authorities  which  have  been  produced  were  of  advancements 
larger  than,  or  equal  to,  the  testamentary  .portions,  but  the  cases 
next  adduced  will  prove, — 

SECONDLY,  his  Lordship's  remaining  proposition,  that  slight  cir- 
cumstances of  difference  between  the  advancement  and  the  portion 
will  not  repel  the  presumed  intention. 

Suppose  then  the  advancement  to  be  of  inferior  amount  to  the 
portion  given  by  will ;  it  has  been  decided,  for  the  reasons  before 
stated, (n)  that  the  former  will  be  a  complete  ademption  of  the  latter. 

In  Hartop  v.  Whitmore^o)  A.  bequeathed  to  his  daughter  a  portion 
of  3001.  and  then  gave  her  upon  marriage  a  portion  of  200/.  He 
lived  four  years  afterwards  without  having  revoked  his  will,  and  Lord 
Parker,  C.  determined  that  the  advancement  was  a  total  ademption 
of  the  testamentary  portion.  And  with  respect  to  the  objection  which 
was  taken,  that  If  A.  had  meant  by  the  advancement  to  adeem  the 
legacy,  he  would  not  have  lived  four  years  after  that  transaction  with- 
out revoking  the  bequest,  his  Lordship  answered,  there  was  no  ne- 
cessity for  A.  to  make  such  revocation,  since  he  had  effectually  done 
so  by  the  advancement. 

So  also  in  Clarke  v.  Burgoine,(p]  B.  gave  to  his  daughter  two  le- 
gacies amounting  to  10001.  He  afterwards,  upon  the  marriage  of  the 
legatee,  paid  20001.  in  part  of  a  portion,  and  covenanted  to  pay  4000/, 
more  at  his  death.  It-*vas  declared  by  Lord  Camden,  C.,  that  J5. 
having  advanced  a  portion  of  6000Z.  on  the  marriage  of  his  daugh- 
ter, viz.  20001.  in  prtesenti,  and  4000Z.  at  his  decease,  the  two  lega- 
cies of  70001.  were  adeemed. 

Instances  in  which  the  advancement  of  a  less  sum  may  only  be  a 
partial  ademption  of  a  testamentary  portion,  are  where  a  testator  has 
declared  his  intention,  either  by  writing  or  verbally,  that  the  advance 
shall  be  restricted. to  that  purpose. 

This  occurred  in  Hoskins  v.  Hoskins,(q)  in  which  case  it  was  pro- 
ved that  the  father,  in  paying  650/.  for  the  purchase  of  a  cornet  of 
horse  for  his  son,  intended  that  the  sum  should  be  deducted  out  of 
750Z.  which  he  had  left  him  by  will. 

If  a  difference  in  amount  between  the  advancement  and  the  tes- 
tamentary portion  will  not  repel  the  presumed  ademption  by  the  for- 
mer, it  seems  to  follow  that  the  slighter  difference  between  them  of 
the  times  of  payment,  when  both  are  certain,  will  not  have  that  effect. 

Accordingly  in  Hartopp  v.  Hartopp,(r)  A.  bequeathed  3000Z.  for 
the  portions  of  his  younger  son  and  daughter  B.  and  C.,  and  such 
otlier  children  as  he  might  have,  in  equal  shares ;  to  be  vested  in- 
terests in  daughters  at  twenty-one,  or  on  marriage,  with  the  consent 

(n)  P.  257. 

(o)  1  P.  Will.  681.  and  see  Mr.  Cox's  note  for  a  further  statement,  though  the 
principle  of  the  decision  is  the  same,  and  agrees  with  the  report. 
(/*)  1  Dick.  353. 

($0  Pre.  Ch.  263.  and  see  Thelluason  v.  Woodford,  4  Madd.  420.  S.  P. 
(r)  17  Ves.  184. 


260  General  Legacies,  [Cn.  VI. 

of  their  guardian,  or  at  twenty-one  if  they  married  without  such  con- 
snit.  ami  in  sons  at  twenty-one,  with  benefit  of  survivorship,  amongst 
thrm.  in  tin-  event  of  the  deaths  of  any  before  they  acquired  vested 
interests.  .1.  declared  that  if  his  son  B.  succeeded  to  A. 's  real  es- 
tate before  he  attained  twenty-one,  by  the  death  of  his  eldef  brother 
£).,  his  share  of  the  3000/.  shofjld  go  to  the  other  younger  children, 
and  that  so  it  should  be  in  the  event  of  any  other  younger  son  suc- 
ceeding to  the  estate  before  twenty-one.  Ji.  theri  directed  thai  the 
portions  should  carry  legal  interest  from  his  death,  with  a  power  to 
his  executors  to 'apply  part  of  it  for  each  child's  maintenance  and 
education  ;  declaring  that  the  surplus  should  accumulate,  be  invest- 
ed, and  added  to  the  capital  of  each  portion.  The  executors,  too, 
were  authorized  to  advance  any  part  of  the  capital  of  a  son's  share 
for  his  advancement  in  life.  And  in  order  to  make  the  fortunes  of 
B.  and  C.  equal  (which  was  not  the  case  for  the  reason  stated  by  .#.,) 
he  gave  to  B.  the  further  sum  of  5001.  with  legal  interest  from  his 
death,  in  the  same  manner  as  he  had  expressed  in  the  disposition  of 
the  3000/.  and  interest.  A.  also  charged  his  personal  and  part  of 
his  real  estate  with  the  payment  of  those  two  sums.  A.  was  seised 
under  his  marriage  settlement,  of  certain  real  estates  for  life,  with 
remainder  in  tail  to  his  eldest  son  D.  And  upon  an  arrangement 
that  took  place  upon  the  marriage  of  D.  after  the  will  was  made,  a 
recovery  of  the  estates  was  suffered  by  A.  and  D. ;  the  uses  of  which 
were  declared  by  settlement  to  enure  as  to  part,  to  the  use  of  trus- 
tees for  600  years,  upon  trust  if  B.  survived  A.  to  raise  for  him  3500J. 
to  be  a  vested  interest  upon  A.'s  death,  and  paid  within  six  calendar 
months  afterwards,  without  interest.  .  The  question  being  whether 
B.  should  have  double  portions,  or  whether  the  legacy  was  adeem- 
ed by  the  settlement,  B.  having  become  the  only  person  interested 
in  the  3000Z.  given  by  the  will,  on  the  events  which  had  happened, 
Sir  William  Grant,  M.  R.  determined  that  the  portion  by  the  settle- 
ment, was  an  ademption  of  that  presided  by  the  will,  and  for  the  fol- 
lowing reasons : 

His  Honour  observed,  that,  in  instances  of  double  provisions  by  a 
father  for  a  child,  slight  circumstances  of  difference  were  not  to 'be 
regarded  ;  and  in  applying  that  rule  to  the  case  before  him,  he  made 
the  following  remarks  :  "  That  although  neither  provision  was  to 
take  effect  in  possession  till  the  father's  death,  yet  the  legacy  was  to 
vest  in  possession  at  the  age  of  twenty-one,  or  upon  the  previous 
marriages  of  daughters  with  consent,  with  interest  from  the  father's 
decease,  whereas  the  provision  by  settlement  was  payable  within  six 
months  after  his  death,  without  interest.  That  the  direction  as  to 
maintenance  and  advancement  out  of  the  legacy  during  the  time  it 
was  contingent,  could  have  no  application  to  the  provision  by  the 
settlement,  which  was  to  be  raised  only  in  the  event  of  B.  surviving 
his  father,  and  even  in  that  case  payable  within  six  months  after  \he 
death  of  the  father,  without  interest.  Upon  the  whole  (said  his  Ho- 
nour,) it  is  not  clear,  which  is  most  advantageous  for  the  objects  of 
the  provision  ;  but  the  balance  against  the  last,  if  any,  is  not  such  as, 
independently  of  other  grounds,  will  warrant  the  Court  to  hold,  that 
the  one  provision  cannot  be  a  satisfaction  of  the  other."(s) 

• 

(s)  On  this  subject  see  Jesstfn  v.  Jesson,  2  Vern.  255.     Thomas  v.  Kemeys,  ibid. 
349.  also  2  Atk.  493.     3  Atk.  98. 


SECT.  I.]  and  their  Jldemption.  261 

It  was  objected  in  the  last  case,  that,  as  the  provision  by  settle- 
ment was  not  the  father's  sole  act,  but  was  made  with  the  concur- 
rence of  D.  his  eldest  son,  it  was  not  a  case  in  which  the  presump- 
tion against  double  portions  could  apply.  To  this  Sir  W.  Grant 
answered,  that  the  probability,  independently  of  extrinsic  evidence 
(which  had  been  given,)  was,  that  it  was  the  father  who  bargained 
for  the  charge  in  favour  of  his  younger  son,  a  fact  clearly  shown  by 
the  evidence,  which  proved  that  he  had  made  it  a  condition  of  his 
concurrence  in  the  settlement  ;  whence  the  father  was  in  effect  the 
sole  author  of  both  provisions ;  for  he,  by  concurring  in  the  settle- 
ment, (which  he  was  not  bound  to  do,)  and  giving  up  his  life-interest 
in  a  part  of  the  estate,  and  subjecting  other  part  of  it  to  an  annuity, 
which  might  fall  upon  it  during  his  life,  became  a  purchaser  of  the 
second  provision,  which  made  the  case  the  same  as  if  it  came  directly 
out  of  his  own  estate.  His  Honour  th^us  concluded :  "Excluding,  then, 
all  declaration  of  actual  intention  (the  admissibility  of  which  he 
doubted,)  the  presumptive  intention  is  a  substitution  of  35001.  pro- 
vided by  the  father's  means  for  the  younger  son,  in  the  room  of  the- 
very  sum,  given  by  the  will." 

Seeing,  then,  that  courts  of  equity  so  much  incline  against 
double  portions,  when  proceeding  from  a  parent  to  his  legitimate 
children,  in  discharge  of  his  moral  obligation  to  provide  for  them, 
as  to  hold  that  the  first  should  be  adeemed  by  the  second,  in  dis- 
regard to  slight  differences  between  them  ;•  it  is  proposed  to  con- 
sider : 

2.  When  the  difference  between  the  provisions  are  so  large  or  im- 
portant as  to  repel  the  artificial  presumption  of  the  latter  being  in 
substitution  of  the  former,  and  to  entitle  the  children  to  their  testa- 
mentary portions,  notwithstanding  advancements  made  to  them  by 
their  parents  on  marriage. 

The  artificial  doctrine  of  the  Court,  before  stated,  in  regard  to 
presumptive  ademption,  has  met  with  severe  reproof  from  modern 
Judges,  as  tending  to  defeat  the  intention  of  parents.  In  establish- 
ing the  practice  upon  this  subject,  the  Court  appears  to  have  paid 
respect  to  the  civil  law..  The  reasons,  however,  assigned  in  support 
of  the  equitable  doctrine  are  unsatisfactory,  for  when  a  father  is  dis- 
posing of  his  property  by  testament,  he  does  so  with  a  view  to  the 
period  of  his  death  ;  but  when  -he  disposes  of  it  by  present  gift,  he 
does  so  with  regard  to  his  life,  so  that  he  may  with  propriety  be  al- 
lowed to  be  more  liberal  in  the  one  case  than  in  the  other,  and  to  in- 
tend a  farther  bounty  to  the  person  advanced,  when  his,  the. donor's, 
life  shall  determine,  unless  he  expresses  the  contrary. 

One  exception  to  presumptive  ademption  is  where  the  testa- 
mentary portion,  and  subsequent  advancement  are  non  ejusdem 
generis. 

A  case  of  this  kind  occurred  in  Holmes  v.  Holmes,(t)  where  A.  in 
the  year  1771,  bequeathed  to-his  son  500/.,  and  4000Z.  to  his  four 
unmarried  daughters.  In  1779  A.  took  his  son  into  partnership  ; 
the  stock  was  to  be  3000Z.  to  be  advanced  in  equal  proportions, 
and  to  the  profits  of  which  they  were  to  be  equally  entitled.  The 

(0  1  Bro.  C.  C.  555. 
VOL.  I.  L  1 


262  General  Legacies,  [Cn.  VI. 

whole  capital  was  brought  in  by  A.,  and  it  was  understood  by  the 
familv,  and  admitted  by  the  other  children,  that  A.  meant  to  give 
lim  son  half  of  the  stock.  There  was  also  parol  evidence  of  his 
drrhirations  to  that  effect.  The  question  was,  whether  the  advance- 
mint  of  a  moiety  of  the  stock  was  an  ademption  of  the  legacy  of 
500J.  And  it  was  determined  in  the  negative,  as  the  two  provisions 
were  nan  ejusdem  generis. 

The  result  of  the  last  case  appears  to  be,  that  the  Court  consider- 
ed A.  as  not  meaning  to  anticipate  the  provision  he  had  made  for 
his  son  by  will  in  money,  by  advancing  him  with  half  of  the  stock  in 
trade,  consisting  of  jewelry ;  since  it  would  be  presuming  too  much 
to  infer  that  Jl.  had  the  idea  of  a  portion  in  his  mind,  when  he  ad- 
vanced for  his  son  articles  of  a  different  kind  from  the  fortune  he  had 
provided  for  him  by  will.(w) 

A  second  exception  occurs  jvhen  the  subsequent  advancement 
depends  upon  a  contingency,  and  the  testamentary  portion  is  certain. 
Suppose,  then,  the  portion  given  by  will  to  be  declared  vested 
upon  the  testator's  death,  and  the  portion  afterwards  settled  upon 
the  legatee,  to  be  made  expectant  upon  some  contingency  after  the 
death  of  the  parent ;  the  latter  will  not  adeem  the  former  ;  for  it 
would  be  unreasonable  to  presume  that  the  father  intended  to  dis- 
charge his  natural  obligation  to  make  a  certain  provision  for  his  child 
at  his  decease,  by  an  advancement  which  may  possibly  never  take 
effect.  Accordingly  Lord  Hardwicke  observed  in  his  judgment  in 
Spinks  v.  Robinsfo)  that  "  in  the  construction  of  double  portions 
it  had  always  been  of  weight  that  they  were  both  certain." 

A  third  exception  arises  in  instances  where  a  legacy  or  advance- 
ment is  not  merely  given  as  a  portion,  but  is  expressed  to  be  made 
in  lieu  of  or  compensation  for  an  interest  to  which  the  child  was  en- 
titled ;  and  upon  this  principle,  that  it  is  not  to  be  presumed  that 
the  parent  intended  by  such  a  bequest  or  advancement  to  perform 
his  moral  obligation  to  his  child,  since  such  provision  is  not  merely 
for  its  maintenance  or  fortune,  but  in  lieu  of  a  benefit  to  which  it  was 
entitled  aliunde,  so  that  the  child,  by  accepting  the  legacy  or  ad- 
vancement, stands  in  the  situation  of  a  purchaser,  and  not  as  a  per- 
son claiming  under  its  parent's  bounty. 

Thus  in  Baugh  v.  Read,(y)  A.  the  daughter  of  B.,  being  entitled 
under  her  grandfather's  will  to  a  sixth  part  of  10,0001.  and  to  a  like 
share  of  QOOOl.  under  her  father's  settlement ;  B.  the  father  (amongst 
other  things)  bequeathed  to  A.  S114Z.  Is.  lid.  bank  stock  for  life, 
remainder  to  her  children  and  grandchildren  ;  but  if  she  died  without 
leaving  such  issue,  he  gave  the  same  to  his  other  children  equally. 
The  will  recited  the  father's  marriage  settlement,  and  declared  that 
the  provision  made  by  it  for  A.  and  his  other  children  were  intended 
in  satisfaction  of  those  they  were  entitled  to  under  his  settlement. 
A.  afterwards  married  C.,  on  which  occasion  B.  transferred  50001. 
in  stock  to  ASs  husband  absolutely,  and  it  was  stipulated  in  the 
settlement  of  A.  and  B.  that  they  in  consideration  of  the  5000Z. 
would  transfer  to  B.-  all  ^.'s interest  in  the  10,OOOZ.  under  her  grand- 
father's will  when  she  became  entitled  to  it,  and  which  was  accor- 

(u)  1  Bro.  C.  C.  427.     (*)  2  Atk.  493.'  and  see  Cromfiton  v.  Sale  2  P.  Will.  553. 
(y)  I  Ves.  jun.  257. 


SECT.  I.J  and  their  Jldemption.  263 

dingly  done.  The  question  was,  whether  the  marriage  portion  given 
with  A.,  by  her  father,  the  testator,  B.,  was  an  ademption  of  the 
legacy  of  81141.  Is.  lid.  bequeathed  to  her  by  his  will,  and  it  was 
determined  in  the  negative. 

It  is  observable  in  the  last  case,  that  the  advancement  by  B.  upon 
the  marriage  of  his  daughter  Jl.  having  been  made  not  merely  as  a 
portion,  but  with  a  view  to  the  surrender  by  Jl.  and  her  husband  of 
her  interest  under  her  grandfather's  will,  excluded  the  presumption 
that  her  father  B.  intended  also  that  it  should  go  in  satisfaction  of 
the  legacy  he  had  given  her  by  his  will ;  which  construction  was 
strengthened,  if  not  wholly  confirmed,  by  the  consideration  that  the 
legacy  could  not  be  considered  as  a  pure  bounty  or  portion,  since  it 
was  given  as  the  purchase  of  *d.Js  interest  under  BSs  marriage  set- 
tlement. Such  appear  to  have  been  the  grounds  of  the  deter- 
mination. 

A  fourth  exception  to  the  general  rule  of  presumptive  advancement 
appears  to  be  when  the  bequest  is  of  uncertain  amount.  It  has  there- 
fore been  determined  more  than  once,  that  the  devise  of  a  residue  or 
of  part  of  a  residue  to  a  child  is  not  adeemed  by  a  subsequent  ad- 
vancement upon  the  legatee's  marriage.  Such  seems  to  be  the 
rule  established  by  authorities,  although  Sir  W.  Grant,  M.  R.,  in 
Bengough  v.  Walker, (z]  intimated  an  opinion,  which,  if  correct, 
would  subvert  this  rule;  for  he  hinted  that  a  residuary  bequest 
might  probably  be  considered  a  satisfaction  of  a  portion.  If  then 
this  be  so,  there  is  no  reason  why  an  advancement  by  the  parent 
might  not  be  an  ademption  of  such  a  legacy.  But  all  the  cases  de- 
cided upon  this  question,  and  not  under  special  circumstances,  ap- 
pear to  negative  that  opinion.  In  Farnham  v.  Phillips,(d)  Lord 
Hardwicke  observed,  there  was  no  case  where  the  devise  had  been 
of  a  residue  that  was  uncertain,  and  at  the  testator's  death  might  be 
more  or  less,  in  which  the  gift  of  a  subsequent  portion  had  been 
held  an  ademption.  So  in  JVatson  v.  The  Earl  of  Lincoln,(b)  his 
Lordship  said,  "  he  was  doubtful"  (though  the  Court  in  Smith  v. 
Strangle)  considered  that  his  opinion  was  certain)  "  whether  an  ad- 
vancement to  Mrs.  Watson  on  her  marriage,  by  her  father,  was  a 
satisfaction  of  one-third  part  ol»his  personal  estate  previously  given 
to  her  by  his  will ;  for  as  it  was  bequeathed  by  way  of  residue,  he 
could  not  mean  it  as  a  portion,  since  it  was  always  changing,  and 
might  be  something,  or  might  be  nothing."  And  in  Freemantk  v. 
Bankes,(d)  Lord  Rosslyn  entertained  the  same  ideas;  observing, 
"  that  the  fallacy  of  the  argument  in  favour  of  the  advancement 
being  an  ademption,  was  in  considering  the  bequest  of  the  residue 
as  a  gift  of  a  portion.  It  never  could  be  so  considered.  The  idea 
of  a  portion  was,  ex  m  termini,  a  definite  sum."  With  respect  to  the 
cases, — 

In  Farnham  v.  Phillips,(e]  a  freeman  of  London,  having  a  wife 
and  six  children,  bequeathed  to  his  wife  her  widow's  chamber,  and 
the  third  of  his  estate  which  she  was  entitled  to  by  the  custom ;  and 
to  his  six  children  one-third,  to  which  they  were  entitled  by  the 

(z)  15  Ves.  513.       (a)  2  Atk.  216.        (b)  Ambl.  327.        (c)  4  Bro.  C.  C.  494. 
(rf)  5  Ves.  85.  see  also  Devese  v.  Pontet,  1  Cox's  Ca.  188  and  Pre.  Ch.  240.  in 
notis  S.  C.  (e)  2  Atk.  215.  and  see  4  Bro.  C.  C.  493.     ' 


264  General  Legacies)  [Cn.  VI. 

same  custom ;  and  as  to  the  remaining  third,  of  which  he  had  the 
power  of  disposal,  he  directed  a  debt  of  100J.  to  be  paid  out  of  it, 
and  the  residue  to  be  equally  divided  among  his  wife  and  children. 
Upon  a  subsequent  marriage  of  one  of  his  daughters,  the  testator  gave 
her  1000/.  called  in  her  marriage  articles  her  portion,  or  provision. 
And  the  question  being,  whether  the  advancement  adeemed  the 
daughter's  testamentary  share  of  the  residue,  Lord  Hardwicke  de- 
termined in  the  negative. 

A  similar  decision  was  made  by  Lord  Rosslyn,  in  Freemantle  v. 
Bankes;(f)  a  case  in  which  A.  gave  his  residuary  estate  to  trustees^ 
in  trust  (after  payment  of  debts,  funeral  and  testamentary  expenses, 
and  of  a  legacy  he  had  given,  and  such  legacies  as  he  might  give  by 
a  codicil)  for  his  four  daughters,  and  any  after-born  children,  as 
mentioned  in  his  will.  One  of  the  daughters  afterwards  married ; 
upon  which  occasion  A.  agreed  to  give  with  her  a  portion,  by  the 
transfer  of  so  much  stock  (which  was  accordingly  transferred)  as 
would  produce  her  husband  a  net  yearly  income  of  400/. ;  the  capi- 
tal stock  and  interest  to  be  settled  upon  husband  and  tvife,  and  their 
children.  The  question  was,  whether  the  advancement  of  this  por- 
tion was  an  ademption  of  the  daughter's  share  of  her  father's  resi- 
duary estate  under  the  will  "?  And  the  Court  determined  it  was  not 
satisfied,  upon  the  principle  before  stated. 

There  was,  however,  a  circumstance  in  the  last  case  of  considera- 
ble importance,  which  was  not  attended  to ;  viz.  that  the  advance- 
ment only  gave  the  legatee  an  interest  for  life,  whereas  by  the  will 
she  was  entitled  to  a  proportion  of  the  residue  absolutely.  But  had 
not  the  decision  been  founded  upon  the  bequest  being  residuary,  it 
is  conceived  that  the  other  difference  between  the  two  provisions 
would  not  have  prevented  an  ademption  according  to  the  general 
doctrine  of  courts  of  equity  before  stated ;  the  reasons  for  which  will 
appear  in  considering  what  is  presumed  to  be  a — - 

Fifth  exception  to  the  usual  presumption  in  the  ademption  of  por- 
tions ;  viz.  that  if  the  legacy  to  a  child  be  absolute,  and  the  advance- 
ment be  given  to  him  only  for  life,  and  the  capital  to  other  persons, 
the  latter  will  not  be  a  satisfaction  gf  the  former ;  and  upon  this 
ground,  that  the  father  is  not  to  be*presumed  to  have  intended,  in 
making  such  a  partial  settlement  on  his  child,  to  revoke  the  testa- 
mentary disposition  he  had  previously  made  as  a  portion,  since  the 
advancement  is  of  interest  only,  but  the  legacy  of  capital ;  so  that 
the  two  provisions  are  non  ejusdem  generis.  Besides,  the  contrary 
presumption  would  have  the  effect  of  leaving  the  issue  of  the  child, 
if  he  had  any,  unprovided  for ;  at  least,  for  any  thing  received  by  its 
parent  from  its  grandfather  :  and  intention  not  to  be  imputed  to  a 
father  in  the  discharge  of  his  moral  obligation,  in  making  a  provi- 
sion for  his  child.(g)  But  these  remarks  are  inapplicable  to  cases 
where,  after  the  life-estate  to  the  child,  suppose  a  daughter,  as  in  the 
case  of  Freemantle  v.  Bankes,  last  stated,  the  money  advanced  is 
ttled  upon  her  children ;  for  it  may  be  rationally  presumed,  that 
the  parent,  m  making  the  advancement,  did  so  as  a  portion  to  his 
daughter,  which  he  was  anxious  to  settle  and  preserve  for  her  and 
her  children  of  the  marriage ;  so  that  his  giving  to  her  an  interest 
(/)  5  Ves.  79.  (  ff)  See  Alleyn  v.  Alleyn,  2  Ves.  sen.  38. 


SECT.  11.3  and  their  Jldemptwn.  265 

for  life  only  is  explained  by  the  circumstances ;  and  such  an  ad- 
vancement is  in  no  wise  inconsistent  with  an  imputed  intention  that 
the  daughter  should  not  have  double  portions.  It  is  conceived, 
therefore,  that  in  those  instances  the  advancements  would  be  ademp- 
tions  of  the  testamentary  provisions. (&) 

Having  considered  what  are  and  what  are  not  ademptions  of  the 
legacies  of  parents  to  their  legitimate  children  by  subsequent  ad- 
vancements, the  next  subject  will  be — 

SECT.  II.  The  Ademption  of  Legacies  by  subsequent  advance- 
ments, when  the  legatees  are  considered  STRANGERS  to  the 
testator,  and  the  legacies  not  as  portions. 

Persons  are  prima  facie  to  be  considered  strangers  to  a  testator  in 
relation  to  the  present  subject,  who  do  not  fall  under  the  description 
of  his  legitimate  children.  But  although  such  be  the  general  rule, 
still  a  testator  may  have  placed  himself  in  loco  parentis  to  indivi- 
duals who  do  not  naturally  or  judicially  stand  in  the  relation  of  chil- 
dren to  him ;  to  which  cases,  what  has  been  already  said  upon  ademp- 
tion  of  legacies  as  between  parent  and  legitimate  child,  will  be  ap- 
plicable. When  a  testator  is  to  be  judiciously  considered  as  having 
assumed  the  situation  or  office  of  a  parent  in  providing  for  a  lega- 
tee, will  be  afterwards  discussed.  In  the  mean  time  we  shall — 

First,  proceed  to  consider  the  doctrine  of  ademption  as  applicable 
to  legacies  given  to  strangers. 

In  Debeze  v.  Mann,(i)  Lord  Thurlow  said,  that  "  if  a  legacy  be 
given  for  a  particular  purpose,  and  the  testator  afterwards  advances 
money  for  the  same  purpose,  it  was  too  late  to  say  it  was  not  a  pre- 
sumption that  he  meant  to  execute  it."  A  principle  acknowledged 
by  Lord  Manners,  Chancellor  of  Ireland,  to  the  following  effect: 
"  Suppose  (said  he)  A.  bequeathed  to  his  brother  5000Z.  to  buy  a 
house  in  Merrion-square ;  and  that  after  A.  bought  one,  which  he 
gave  to  his  brother;  are  there  two  houses  to  be  boughtf'(fc)  Ac- 
cording to  this  reasoning,  if  a  testator  give  a  legacy  of  100JL  to  C. 
to  place  him  as  an  apprentice,  or  to  purchase  furniture,  and  the  tes- 
tator after  the  date  of  his  will  advance  lOOi.  with  C.  as  an  appren- 
tice fee,  oY  give  him  that  sum  to  buy  furniture;  either  of  those  acts 
will  be  an  ademption  of  the  legacy. (/) 

But  it  is  requisite  that  the  purposes  of  the  legacy  and  advancement 
should  exactly  correspond,  otherwise  the  legacy  will  not  be  adeemed. 
Suppose,  then,  the  legacy  to  be  given  to  A.  "  to  fit  her  out  for 
India,  or  to  dispose  of  her  in  marriage ;"  and  the  testator,  after  the 
marriage  of  A.  with  B.  gave  them  600Z.,  which  was  the  case  of  De- 
beze v.Mann;(m)  Lord  Thurlow  decided,  that  the  600Z.  was  not  an 
advancement,  but  a  general  gift,  being  after  marriage ;  and  that  there 
was  no  evidence  nor  presumption  that  the  gift  of  600J.  to  two  mar- 
ried persons  was  an  execution  of  a  testamentary  gift;  and  that,  there- 
fore, the  legacy  was  payable. 

So  also  in  Roome  v.  Roome,(n)  B.  directed  his  executors  to  place 


Trimmer  v. 

Bayne,  7  Ves.  516.     (k)  1  Ball.  &  Beat.  303.     (/)  Roseivell  v.  Bennett,  3  Atk.  77. 
fm)  2  Brb.  C.  C.  165.  and  see  Robinson  v.  Whitdey,  9  Ves,  577.  579. 
(n)  3  Atk.  181. 


266  General  Legacies,  [Cn.  VI. 

1000?.  at  interest,  and  to  apply  the  whole  or  such  part  of  the  interest 
as  they  thought  necessary  for  the  support  and  education  of  his  grand- 
son C.',  and  further,  to  appropriate  all  or  any  part  of  the  principal 
and  interest  in  binding  him  an  apprentice,  or  for  his  advancement 
in  life,  as  they  thought  proper;  the  surplus,  if  any,  to  be  paid  to  him' 
at  his  age  of  twenty-one..  After  this,!?,  placed  C.  to  a  haberdasher, 
and  paid  with  him  1261.  The  question  was,  whether  by  that  ad- 
vancement the  legacy  was  partially  adeemed  9  And  the  Master  of  the 
Rolls  decided  in  the  negative,  for  the  following,  amongst  other  rea- 
sons; that  the  1000Z.  were  not  bequeathed  for  the  sole  purpose  of 
putting  C.  out  as  an  apprentice,  but  for  other  purposes,  viz.  mainte- 
nance, &c. 

And  since,  in  the  construction  of  double  portions,  it  has  always 
been  considered  requisite  that  both  of  them  should  be  certain  ;(o) 
a  fortiori  the  lily*  construction  must  prevail  when  the  testator  stands 
in  the  relation  of  a  stranger  to  the  legatee. 

Accordingly,  in  Spinks  v.  Robins, ( p]  .#.,  who  lived  several  years 
with  Mrs.  Robins  previously  to  her  death,  bequeathed  to  the  two 
daughters  of  that  lady  1000H.  a-piece,  to  be  paid  at  twenty-one, 
with  survivorship  between  them  if  either  died  under  that  age.  Jl. 
afterwards  gave  two  bonds  to  B.  andC.  for  2000Z.  each,  provided  they 
married  during  his  life  with  his  consent,  or  in  case  they  survived 
him  ;  and  Lord  Harduricke  determined  that  the  legacies  were  not 
adeemed  by  the  bonds  ;  the  legacies  and  subsequent  gifts  depending 
upon  different  contingencies. 

In  instances  where  the  bequest  is  general,  and  made  by  a  stranger, 
or  other  person  than  a  parent,  not  having  placed  himself  in.  loco 
parentis,  and  no  intention  legally  appears,  that  a  subsequent  ad- 
vancement was  made  with  a  view  to  adeem  the  legacy ;  such  ad- 
vancement will  not  have  that  effect ;  for  since  there  is  no  such 
obligation  upon  the  testator  to  provide  for  the  legatee,  as  subsists 
between  a  parent  and  child,  no  inference  arises  that  he  intended  by 
the  subsequent  gift  or  advancement,  to  perform  any  such  duty  in 
prasenti,  which  he  had  provided  for  by  will  after  his  death.(^)  And 
there  is  no  reason  why  a  person  should  not  be  entitled  to  as  many 
gifts  as  another  chooses  to  bestow.  Grand-children,  brothers,  sis- 
ters, uncles,  aunfe,  nephews  and  nieces,  are  strangers  to  the  testator 
within  the  meaning  of  the  present  nile.  Natural  children,  too,  are 
in  the  same  situation ;  for  the  law  does  not  acknowledge  their  rela- 
tion as  the  children  of  their  putative  father-,(r)  a  circumstance  which 
places  them,  in  this  instance,  in  a  better  condition  than  legitimate 
children,  since  a  mere  advancement  to  them  will  not  prima  facie  be 
an  ademption  of  a  legacy  given  by  their  father.  As  then,  natural 
children  are  judicially  considered  in  the  character  of  strangers  to 
their  parents,  the  distinction  which  will  be  noticed  upon  the  subject 
of  ademption  in  ihis  section,  generally  apply  to  them.  We  shall, 
however, — 

FIRST  consider  the  authorities  where  the  bequest  is  made  by  col- 
lateral relations,  and  strangers  to  the  legatees. 

In  Shudal  v.  Jekyll,(s]  A.  the  great  uncle  of  B.  and  C.  bequeath- 

(°)  Suflra,  p.  262.  (^  2  Atk.  491. 

(?)  See  exfiarte  Dubost,  18  Ves.  153.       (r)  18  Ves.  182.       («)  2  Atk.  516.    • 


SECT.  II.]  and  their  Jldemption.  267 

ed  to  them,  while  their  father  was  living,  legacies  of  1000/.  a  piece. 
Previously  to  J?.'s  marriage  with  D.,  A.  in  consideration  of  it,  ad- 
vanced to  D.  500/.  Lord  Hardwicke  was  of  opinion,  that  the  ad- 
vancement was  not  an  ademption  of  the  legacy,  either  wholly  or  in 
part;  because  it  was  not  a  transaction  between  parent  and  child, 
nor  by  a  person  who  stood  in  loco  parentis. 

Similar  to  the  last  was  the  case  of  Powel  v.  Cleaver,(t]  in  which 
B.  devised  6000/.  to  his  niece,  C.  her  father  being  then  living  ;(M) 
the  GOOD/,  was  not  expressed  to  be  a  portion.  B.  afterwards,  upon 
C.'s  marriage,  advanced  to  her  5000Z. ;  that  sum  being  called  her 
portion  in  the  settlement  made  on  the  occasion.  There  were  also 
entries  in  B.'s  books,  from  which  it  appeared  that  he  made  calcula- 
tions of  the  sums  he  had  advanced  a*  a  poi'tion.  The  question  was, 
whether  the  advancement  was  a  total  or  a  partial  ademption  of  the 
legacy '1  And  Lord  Thurlow  decided,  that  it  was  neither  the  one  nor 
the  other,  but  that  C.  was  entitled  to  the  legacy. 

His  Lordship's  judgment  was  founded  on  the  principle,  that  the 
case  was  not  one  of  parent  and  child,  nor  of  a  person  who  had  volun- 
tarily assumed  the  relation  of  a  father ;  that  the  legacy  was  not  given 
as  a  portion  but  a  bounty ;  and  that  although  the  advancement  was 
called  a  portion,  the  term  should  not  have  the  same  import  and  con- 
sequence in  the  instance  of  a  stranger  using  it,  as  it  would  have  if 
adopted  by  a  parent. 

In  the  modern  case  of  Wetherby  v.  Dixon,(x)  A.  gave  a  legacy 
of  lOOOi.  to  B.  a  stranger  t<*  the  testator.  A.  at  different  times 
afterwards,  purchased  2400Z.  three  per  cent,  reduced  bank  annuities 
in  his  own  name ;  but  before  his  death  he  transferred  them  into  the 
joint  names  of  himself  and  B.  B.  survived  «/2. ;  and  the  question 
was,  whether  by  the  transfer  the  legacy  was  adeemed'?  And  Sir 
W.  Grant,  M.  R.  determined  in  the  negative,  upon  the  principle  be- 
fore stated. 

So  also  in  Roome  v.  Roome,(y)  the  Master  of  the  Rolls  considered 
that  a  grandfather  was  in  the  same  situation  in  regard  to  the  present 
rule  as  a  collateral  relation ;  observing,  that  a  father  was  obliged  to 
maintain  his  child,  but  that  a  grandfather  was  not  obliged  to  main- 
tain a  grand-child;  and  that  a  father  could  appoint  a  testamentary 
guardian  of  his  child,  which  its  grandfather  could  not  do. 

SECONDLY, — With  respect  to  natural  chjldren. 

Although  it  has  been  often  attempted  to  place  natural,  upon  an 
equality  with  legitimate,  children,  the  endeavour  has  as  frequently 
failed  for  the  reason  before  stated. 

Accordingly,  in  Grave  v.  Lord  Salisbury, (z]  (the  first  case  before 
Lord  Thurlow,}  Lord  Salisbury  having  several  natural  children,  to 
whom  he  had  given  legacies,  not  so  described,  afterwards  made  pro- 
vision for  them  in  his  lifetime,  but  not  ejusdem  generis,  giving  the 
living  of  Hatfield  to  one,  a  farm  and  stock  to  another ;  upon  which 
latter  gift  the  question  arose.  It  was  contended  to  be  an  ademption, 
upon  the  presumption  arising  from  an  advancement  made  by  a  pa- 

(/)  2  Bro.  C.  C.  499.        (M)  This  fact  is  to  be  inferred  from  the  argument. 

(~r)  Coop.  C.  C.  279.  (y)  3  Atk.  183.  and  see  Lord  Eldon's  observations  in 
Perry  v.  IVIiitehead,  6  Ves.  546. 

(z)  Stated  18  Ves.  152,  and  1  Bro.  C.  C.  425.  and  see  infra,  under  the  title 
"Parol  Evidence." 


268  General  Legacies,  [Cn.  VI. 

rent  to  his  legitimate  child,  before  considered.  And  Lord  Thurlow 
directed  a  Master  to  inquire  into  the  circumstances,  but  the  Master 
made  no  report  of  the  relation  of  the  testator  to  the  legatees ;  and 
his  Lordship  refused  to  send  it  back  to  him  on  that  account,  observ- 
ing, that  the  object  of  Lord  Salisbury  might  have  been  to  conceal 
that  relation.  The  Court,  therefore,  without  deciding  what  would 
have  been  the  result  if  that  relation  had  appeared,  considered  it 
sufficient  that  the  case  stood  as  one  of  a  stranger,  so  that  the  gift 
was  not  an  ademption  of  the  legacy. 

But  circumstances  may  form  exceptions  to  the  general  rule  as, — 

2.  Where  a  testator  takes  upon  himself  the  relation  and  duty  of  a 
parent,  which  may  not  only  happen  when  he  is  collaterally  related, 
or  the  putative  father  of  the  legatee,  but  where  no  relationship  sub- 
sists between  them.  When  the  testator's  assumption  of  the  office  of 
a  parent  is  established,  his  legacy  will  be  considered  a  portion,  and 
a  subsequent  advancement  will  be  an  ademption  in  all  cases  where 
it  would  be  so,  if  made  by  the  natural  parent,  and  which  have  been 
before  discussed. 

The  only  difficulty  is  to  ascertain,  what  are  circumstances  suffi- 
cient to  invest  the  testator  with  the  assumed  relation  of  parent  to  the 
legatee,  and  the  evidence  competent  to  prove  that  he  placed  him- 
self in  such  character.  The  uncertainty  of  what  that  evidence  ought 
to  be,  is  confessed  by  Lord  Eldon  in  ex  parte  Dubost,(a)  where  he 
observes  "  whether  it  is  to  be  written  evidence  in  the  will  and  set- 
tlement, or  the  conduct  observed  at  tfce  marriage,  or  to  be  derived 
from  mere  declarations,  is  left  so  much  afloat,  that  there  is  considera- 
ble difficulty  in  making  a  judicial  decision  upon  it." 

The  test  in  those  cases  seems  to  be,  whether  the  circumstances, 
taken  in  the  aggregate,  amount  to  moral  certainty  that  a  testator 
considered  himself  in  the  place  of  the  child's  father,  and  as  mean- 
ing to  discharge  that  natural  obligation  which  it  was  the  duty  of  a 
parent  to  perform,  for  that  is  the  principle.  The  mere  circumstance 
of  a  provision  made  by  a  relation  being  so  usual  without  any  inten- 
tion to  interfere  with  the  relative  obligation  between  parent  and  child, 
that  no  clear  inference  arises  from  such  a  provision  that  the  testator 
meant  to  substitute  himself  in  loco  parentis. 

It  seems  a  natural  consequence  from  what  has  been  observed,  that 
in  questions  upon  this  subject,  it  must  be  a  material  feature  in  each 
case  whether  the  father  of  the  legatee  be  living  or  dead  at  the  time 
when  the  will  was  made.  If  living,  it  appears  from  the  before  men- 
tioned cases  ofShudal  v.  JekylL  Powel  v.  Cleaver,  Grave  v.  Salisbti- 
ry,  and  Roome  v.  Roome,  that  the  mere  connexion  of  grandfather,  or 
collateral  relation,  or  putative  father  to  the  legatee  will  of  itself  be 
insufficient  evidence  of  the  testator's  intention  to  place  himself  in 
loco  parentis,  to  the  extent  of  incurring  and  paying  the  moral  debt 
contracted  by  the  father  of  the  child ;  consequently  a  subsequent 
advancement  by  such  a  testator  will  not  come  within  the  general 
presumption  of  ademption  as  between  parent  and  child. (6)  And  it 
would  seem  from  the  observations  in  Roome  v.  Roome,(c)  a  case 

(a)  ISVes.  152. 

(6)  See  Lord  Eldon's  observations  in  Perry  v.  Whitehead.  6  Ves.  548. 

(c)  3  Atk.  181. 


SECT.  II.  1  and  their  Ademption.  269 

where  the  father  of  the  legatee  was  dead  when  the  will  was  made, 
that  such  circumstance  would  not  of  itself  be  a  sufficient  manifesta- 
tion of  the  testator's  intention  to  place  himself  in  the  situation,  and 
to  incur  the  obligation  last  mentioned. (d) 

Upon  the  whole  it  may  probably  be  considered  that  although  the 
legatee  may  have  been  advanced  by  the  testator  during  his  life,  and 
brought  up  by  him,  and  who,  in  a  sense,  may  be  considered  as  stand- 
ing in  the  relation  of  a  father  to  the  legatee ;  yet  if  the  natural  fa- 
ther be  living,  and  he  be  described  in  the  will  as  father  of  the  lega- 
tee, and  the  legacy  is  not  expressly  given  as  a  portion,  the  testator 
will  not  be  considered  as  having  by  the  bequest  meant  to  perform 
the  father's -duty  in  providing  for  the  child,  but  merely  to  give  the 
legacy  as  a  bounty,  so  as  not  to  be  adeemed  by  a  subsequent  ad- 
vancement, (e) 

Thus  in  exparte  Dubost,(f]  A.  having  three  natural  daughters  by 
B.  the  wife  of  C.,  bequeathed  to  them  nominatim,  and  as  the  daugh- 
ters of  C.,  40001.  a  piece.  He  also  gave  to  their  supposed  parents 
unequal  legacies.  .#.  afterwards,  upon  the  marriage  of  D.  one  of  the 
daughters,  advanced  for  her  3000Z.  as  a  marriage  portion,  which, 
from  the  settlement,  appeared  to  have  been  received  by  her  husband  ; 
and  the  question  was,  whether  DSs  legacy  was  adeemed  by  the  ad- 
vancement ?.  And  Lord  Eldon  decided  in  the  negative,  and  said, 
"  recollecting  how  artificial  the  rules  are,  where  a  person,  has  edu- 
cated a  child  through. life,  considering  himself  as  standing  in  relation 
of  putative  father  to  that  child,  having  a  father"  acknowledged,  de- 
scribing that  child  as  the  child  of  a  mother  named  and  a  father  nam- 
ed, ami  also  making  a  provision  for  the  father  and  mother ;  it  would 
be  too  much  upon  such  a  will,  to  say,  this  is  the  case  of  a  person, 
meaning  to  pay,  not  what  the  Court  calls  a  debt  of  nature,  but  a  debt 
he  meant  to  contract,  or  in  other  words  meaning  to  place  himself 
in  loco  parentis,  in  the  situation  of  the  person  described  as  the  law- 
ful father  of  that  child." 

That  a  person  may  assume  the  relation  and  duty  of  parent,  appears 
from  dicta  in  all  or  in  the  great  majority  of  the  cases;  and  Lord 
Hardwicke  has  supposed  an  union  of  circumstances,  which  in  his 
opinion  will  be  sufficient  to  place  an  individual  in  loco  parentis. 
"  Suppose,  (said  -he)  a  female  to  be  an  orphan,  and  under  the  care  of 
a  collateral  relation,  who  bequeaths  to  her  a  legacy,  expressing  it  to 
be  for  her  portion,  and  afterwards  makes  provision  for  her  in  his  life- 
time; I  should  be  inclined  to  think  that,  this  would  be  ademption.'^g1) 

Three  things  are  observable  in.  the  case  supposed,  viz.  that  the 
child  should  be  an  orphan,  (a  circumstance  which  distinguishes  it 
from  ex  parte  Dtibost  before  stated ;)  that  it  should  be  under  the  care 
of  the  testator,  and  that .the_  testamentary  gift  should  be  expressed  in 
the  will  as  a  portion.  Hence  it  may  be  inferred  to  have  been  Lord 
Hardwicke's  opinion,  that  parol  evidence  was  admissible  to  show  the 
relation,  real  or  assumed, between  the  testator  and  legatee;  but  that 
it  was  not  admissible,  in  the  first  instance,  to  prove  that  the  legacy, 
appearing  on  the  face,  of  the  will  as  a  bounty,  was  intended  by  the 
testator  as  a  portion..  For  the  admission  of  parol  evidence  in  the 

(d)  See  also  Sfiinks  v.  Robins,  1  Atk.  491.  stated  sufira.  p.  266. 
(0  18  Ves.  154.  (/)  Ibid.  140.  (§•}  2  Atk.  518. 

VOL.  i.  Mm 


General  Legacies,  [Cn,  VI. 

latter  case  would,. in  violation  of  the  statute  of  frauds,  have  the  effect 
of  altering  or  defeating  the  written  instrument;  first,  by  raising  a 
presumption  that  the  testator  intende'd  to  place  himself  in  loco  pa- 
rentis  when  lie  made  his  will,  and  then,  consequently,  by  bringing  into 
operation  the  before  mentioned  rule  respecting  ademption  as  in  the 
case  of  parent  and  child. 

In  Monck  v^  Monck,(h)  we  are  supplied  with  a  decision,  founded 
upon  the  construction  of  instruments-,  or  in  other  words  upon  written 
evidence ;  pronouncing  that  a  brother  had  clearly  shown  at  the  date 
of  his  will,  an  intention  to  assume  the  character  of  a  father  to  his 
legatee ;  and  to  perfom  the  debt  or  duty  which  was  owing  by  the 
natural  parent.  In  that  case  A.  recited  in  his  will,  that  he  had,  upon 
the  marriage  of  his  brother  .£?.  given  a  bond  for  5000/.  to  the  uses  of 
B's  marriage  settlement,  and  as  a  provision  for  him.  A.  then  be- 
queathed to  his  brother  C.  the  like  sum  of  5000Z.  directing  his  trus- 
tees to  pay  the  interest'  to  (7.  for  life ;  and  in  case  of  his  marriage, 
A.  empowered  him  to  settle  part  of  the  interest  to  the  annual  amount 
of  150/.  as  a  jointure  upon  his  wife  ;  and  bequeathed  the  capital  to 
the  issue  of  the  marriage ;  on  failure  of  whom  the  5000Z.  was  to  lapse 
into  A?s  real  estates,  for  the  benefit  of  his  eldest  son.  After  the 
date  of  this  will,  C.  married  ;  and  upon  that  occasion  A.  gave  a  bond 
for  4000Z.  to  the  trustees  in  C.'s  settlement ;  the  interest  of  which 
sum  was  limited  to  C.  for  life,  then  to  his-  wife  for  life;  and  the  capi- 
tal was  to  be  divided  amongst  the  issue  of  the  marriage  as  C.  should 
appoint ;  but  if  there  were  no  issue,  who  should  become  entitled  to 
the  4000Z.,  the  money  was  to  be  assigned  to  A.  his  executors,  &c. 
who  had,  before  the  present  transaction-,  and  after  the  will  was  made, 
advanced  1000Z.  to  C.  to  enable  him  to  purchase  a  house.  The  ques- 
tion was,  whether  these  advancements  were  an  ademption  of  the 
legacy  of  5000L1?  And  to  prove  that  they  were,  parol  evidence  by 
ASs  relatives  was  offered  and  admitted.  Lord  Manners,  Ch.  decid- 
ed that  the  legacy  was  adeemed;  and  for  this  reason,  that  it  clearly 
appeared  from  the  will  and  settlement,  that  «#.  intended,  and  had 
placed  himself  in  loco  parentis  to  his  brother  C.  whence  arose. the 
presumption  against  double  portions  which  subsists  between  parent 
and  child  ;  and  the  presumption  being  so  raised,  parol  evidence  to 
confirm  it  was  admissible. 

The  last  is  a  very  strong  case,  to  show  that  the  testamentary  pro- 
vision by  the  brother  was  intended  as  a  portion  for  C.  The  will  so 
states  the  fact;  and  it  appears  from  the  contents  that  A.  adopted  his 
two  brothers  into  his  family,  and  provided  for  them  in  the  same  man- 
ner and  to  the  same  amount(ij  as  for  his  own  children.  So  that  if 
an  advancement  to  his  child  would  be  a  presumptive  ademption  of 
its  legacy  or  portion,  for  the  same  reason,  an  advancement  to  the 
brother  must  be  attended  with  the  like  consequences. 

.3  and  4.  But  it  remains  to  be  considered  how  far  parol  evidence 
may  be  adduced,  to  show  that  a  testator  intended  to  substitute  him- 
self in  loco  parentis,  when  that  intention  cannot  be  ascertained  upon 
the  face  of  the  will.  And  as  the  principles  for  admitting  parol  evi- 
dence in  that  case  equally  apply  to  its  admissibility.  when  offered  to 

(A)  1  Ball  &  Beat.  Ca.  in  Eq.  in  Ireland,  298.  and  see  Trimmer  v.  Bayne, 
7  Ves.  508.  (:)  1  Ball.  &  Beat  304. 


SECT.  II.]  and  their  Ademption.  271 

prove  the  intention  of  a  (stranger)  to  adeem,  by  advancement,  a 
legacy  he  had  previously  given ;  both  subjects  are  necessarily  blend- 
ed in  the  present  consideration. 

When  the  uncertainty  and  perplexity  which  obscure  these  two 
subjects,  and  Lord  Eldorfs  observations  relative  to  the  former  of  them 
are  considered,  due  allowance,  it  is  hoped,  will  be  made  for  the  dif- 
ficulty of  attempting  to  present  the  reader  with  a  satisfactory  view  of 
the  rules,  which  regulate  the  admission  of  parol  evidence  in  the  in- 
stances before,  us,  together  with  a  concise  arrangement  of  the  cases 
in  illustration  of  those  rules:  nor  can  it  be  expected  that  such  an  at- 
tempt will  be  entirely  successful,  as  the  subject  presents  a  labyrinth 
of  discordant  cases  and  opposing  diQta.  The  only  clue  towards  a 
satisfactory  termination  of  the  inquiry,  must  be  an  examination  of 
each  case  and  dictum,  by  the  test  of  those  principles,  upon  which  the 
admissibility  of  parol  evidence  iu  general,  has  been  admitted. 

In  early  times,  parol  evidence  was  admitted  in  relation  to  written 
instruments  with  great  jealousy.  Lord  Talbot  is  an  authority  for 
the  assertion,  that  previous  to  the  year  1734,  none  of  the  cases  had 
gone  further  in  the  admission  of  this  kind  of  evidence, .than  to  rebut 
an  equity  or  a  resulting  trust ;  instances  in  which  the  parol  testi- 
mony tended  to  support  the  intention  of  a  testator,  consistently 
with  his  written  will. (A;)  Under  this  class  of  cases,  may  be  placed 
those  authorities,  where'  an  executor  has  a  legacy  given  to  him,  and 
the  residue  is  undisposed  of.  Here  a  court  of  equity  interferes, 
upon  a  presumed  intention,  that  the  testator,  in  giving  a  part  of  his 
personal  estate  to  the  executor,  who  at  law  is  entitled  to  the  whole, 
meant -him  to  take  no  more  than  the  specific  share ;  consequently, 
the  Court  converts  him  into  a  trustee  for  the  next  of  kin.  This  doc- 
trine of  equity,  it  must  be  remarked,  is  founded  upon  presumption, 
not  raised  by  parol,  but.  upon  the  testator's  will,  viz.  the  legacy 
therein  given,  and  whence  the  above  presumption  springs ;  being  a 
presumption,  it  may  be  repelled  by  parol  evidence,  and  consequently 
confirmed  by  it.  'This  is  established  by  a  variety,  of  cases,  from  that 
of  Lady  Granvill  y.  The  Duchess  of  Beaufort,(l)  to  the  case  of 
Langham  v.  Sanford;(m)  but  such  evidence  is  inadmissible  without 
the  prior  gift  of  a  legacy,  or  an  inference  to  the  exclusion  of  the 
executor,  collected  from  the  contents  of  the  will  ;(w)  for  the  holding 
of  the  contrary  j  would  be  not  to  rebut,  but  to  raise  an  equity  by 
parol,  in  contradiction  to  the  legal  import  of  the  will. 

Another  class  of  cases  upon  the  present  subject  is,  where  there 
is  no  error  or  ambiguity  patent  upon  the  face  of  the  will,  but  there 
happens  to  be  a  latent  doubt  or  mistake  discovering  itself,  when  the 
words  of  the  will  are  attempted  to  be  applied, to  the  person  descri- 
bed, or  to  the  subject  given.  In  those  instances  parol  evidence  is 
admitted  to  ascertain  the  person  and  the  subject  of  the  bequest. 
The  former  was  done  in  Beaumont  v.  Fell,(o)  where  the  legatee  was 
described  as  Catharine  Earnley  instead  of  Gertrude  Yardley;  ade- 

(£)  Forrest,  242.  (/)  2.  Vem.  648. 

(m)'  17  Ves.  435..  2  Meriv.  6.  see  also  Lynn  v.  Beaver,  1  Turner,  68.  per  Lord 
Eldon  ;  also,  chap.  xxiv. 

(«)  Osborne  v.  Villiers,  2  New  Abr.  426.  and  see  2  Meriv,  17.  and  White  v.* 
Williams,  3  Ves.  and  Bea.  73. 

(o)  2  P.  Will.  140. 


272  General  Legacies,  [Cn.  VI. 

termination,  the  principle  of  which  has  been  ever  since  acted  upon 
in  a  variety  of  instances. (/>)  The  latter  occurred  in  the  cases  pro- 
duced in  the  fourth  section  of  the  fourth  chapter, (q)  where  the  tes- 
tator having  no  property  in  the  specific  fund  described  by  him,  yet 
possessed  property  in  another,  as  when  he  bequeathed  so  much  three 
per  cent  reduced  annuities,  having  no  stock 'of  that  description,  but 
possessing  stock  in  three  per  cent  consols.  In  such  and  the  like 
cases,  it  being  unavoidable  to  resort  to  the  testator's  estate  to  find 
the  property  described,  the  .slight  difference  in  the  description  be- 
tween the  fund  and  the  state  in  which  it  is  actually  found,  raises  a 
presumption,  that  such  variance  was  founded  in  mistake,  and  that 
the  legatee  was  intended  to  have  the  stock,  although  it  did  not  lite- 
rally answer  the  terms  of  the  bequest.-  Upon  that  principle  it  is, 
and  not  upon  any  extrinsic  evidence  directly  brought  to  explain  or 
correct  the  will,  upon  the  alleged  intention  of  the  testator,  that  the 
legacy  is  supported. 

The  next  class  of  cases  in  which  parol  evidence  has  been  admit- 
ted, is  founded  in  the  relation  between  parent  and  child.  A  court 
of  equity,  without  any  intention  expressed  by  the  father,  raises  a 
presumption,  upon  the  natural  obligation  he  is  under,  to  provide  for 
his  own  immediate '-offspring,  that  a  gift  either  by  deed  or  will,  is 
intended  by  him  not  merely  as  a  bounty,  but  a  portion,  a  payment 
of  the  debt,  which  by  nature  he  contracted,,  to  his  child,  as  before 
noticed  ;(r)  so  that  if  the  provision  be  by  will,  and  the  father  after- 
wards advance  the  child  upon  marriage,  the  .latter  will  adeem  the 
former,  except  a  different  intention  be  proved;  for  this,  like  the 
case  of  the  executor  >  being  a  presumption,  may  be  destroyed  by  the 
application  of  verbal  testimony,  or  it  may  be  confirmed  by  the  same 
species  of  evidence. 

Thus  in  Biggleston  v.  Grubb,(s)  parol  evidence  was  admitted  to 
show  that  a  father  gave  500i.  upon  his  daughter's  marriage,  to  her 
husband,  in  full  discharge  of  a  sum  of  5007.  which  he  had  left  her  by 
his  will. 

So  in  Rosewell  v.  Bennet,(t}  Lord  Hardwicke,  allowed  parol  de- 
clarations of  a  father,  in  proof  that  200Z.  advanced  by  him  in  placing 
his  son  a  clerk  in  the  Navy  Office,  were  intended  by  the  father  in 
satisfaction  of  a  legacy  of  300Z.  given  by  his  will  to  the  son. 

The  like  doctrine  is  established  by  the  cases  of  Hoskins  v.  Hos- 
kins,(u}  Robinson  v.  I¥hitley,(x)  and  Thellusson  v.  Woodford.(y') 

All  the  cases  which  have  been  noticed  are  upon  presumptions, 
arising  either  from  the  act  of  the  testator  in  writing,  or  in  conse- 
quence of  latent  ambiguities,  or  upon  presumptions  founded  upon  the 
relation  of  the  parties ;  instances  in  which  there  is  no  doubt  that 
parol  evidence  is  admissible.  To  these  may  be  added  another  in- 
stance, more  immediately  falling  within  the  subject  of  the  present 
section,  viz. 

Where  a  stranger  or  putative  father  gives  a  legacy  for  a  particu- 
lar purpose,  expressed  in  his  will,  and  afterwards  advances  money 

( /O  See  1  P.  Will.  421--425.  2  Ves.  sen.  216.  Ambl.  374.  1  Ves.  jun.  266, 
3  Ves.  148.  6  Ves.  42.  12  Ves.  279. 

(y)  Ante,  p.  219.  etseq.  (r)  Ante,  p.  255.  («)  2  Atk.  48. 

(0  3  Atk.  77.  (u)  Pre.  Ch.  263.  (;c)  9  Ves.  577. 

(V)  4  Madd.  420. 


SECT.  II.]  and  their  Jldemption.  273 

for  the  same  purpose.  In  such  a  case,  a,  presumption  is  raised  upon 
the  unity  of  purpose,  that  the  execution  of  it  by  an  advancement  in 
his  lifetime,  was  meant  in  substitution  of  his  testamentary  provision 
made,  as  expressed,  to  promote  the  same  end ;  and  consequently 
that  the  advancement  is  an  ademption  of  the  legacy,  as  before  no- 
ticed, (z)  But  since  this  doctrine  is  founded  upon  a  presumption, 
it  follows,  that  such  presumption  may  be  repelled  by  parol  testi- 
mony of  a  contrary  intention,  or  the  inference  may  be  strengthened 
by  confirmatory  evidence. (a) 

There  can  be  no  question  about  the  subsequent  gift  being  an 
ademption,  when  the  motive  for  giving  the  legacy  and  making  the 
advancement  appears  in  the  will  and  by  deed;  but  to  what  extent 
parol  testimony  is  admissible  to  show  that  a  legacy  was  intended  as 
a  portion,  or  a  gift  intended  a  substitute  for  a  legacy,  or  that  a  per- 
son bad  assumed  the  relation  of  a  parent,  remains  to  be  considered. 

It  is  a  first  .principle  of  law  that  a  will  cannot  be  explained  by 
any  thing  but  itself.(6)  Hence  it  is  incapable  of  being  altered,  de- 
tracted from,  or  added  to,  by  parol;  nor  can  oral  testimony  be  ad- 
mitted to  prove  upon  what  terms  a  legacy  was  given. (c)  Applying 
this  doctrine  to  the  points  now  under  consideration,  it  seems,  to 
follow,  that  since  a  legacy  by  a  stranger  judicially  imports  mere 
bounty,  the  nature  of  the  bequest  cannot  be  changed(d)  by  its  con- 
version into  a  portion,  through  the  medium  of  parol  evidence  di- 
rectly and  in  the  first  place  applied  to  the  motive  for  making  the 
bequest.  •  The  Statute  of  Frauds  appears  to  forbid  any  such  appli- 
cation.^) And  unlessj  as  has  been1  shown,  the  gift  by  will  were 
expressed I  to  be  a  portion,  or  a  legacy  for  a  particular  purpose,  and 
the  advancement  was  made  for  the  same  purpose,  there  would  be 
no  presumption  of  an  intent  .to  adeem  the  former  by  the.  latter,  as 
then  there  would  exist  no  presumption  to  repel  or  to  confirm,  it  is 
conceived  that  there  could  be  no  pretence  or  principle  for  admitting 
parol  evidence  to  alter  the  legal  import  of 'the  expressions  in  the 
will,  for  the  purpose  of  defeating  the  legacy  by  a  presumed  inten- 
tion-to  adeem  it,  arid  that  presumption  raised  by  oral  testimony 
directly  applied  to  the  instrument,  and  in  opposition  to  its  •  legal 
construction  and  effect.  So  powerfully  was  Sir  W.  Grant,  M.  R. 
impressed  with  the  impropriety*  of  admitting  parol  evidence  in.  those 
cases,  as  even  to  doubt  in  Hartopp  v.  Hartopp,(f)  (a  case  of  parent 
.  and  child),  whether  in  strictness  it  were  competent  in  the  first  in- 
stance to  give  evidence  of  declarations  that  the  father  intended  to 
substitute  the  portion  advanced  by  him  in  the  place  of  that  he  had 
bequeathed,  a  doubt  in  which  his  Honour  had  been  preceded  by 
Lord  Rosslyn  in  Freemantle  v.  Banke's.(g)  But  when  it  is  consi- 
dered that  in  instances  of  parent  and  child,,  a  presumption  is  raised 
upon  that  relation  which  springs '  immediately  upon  the  advance- 
ment of  the  portion,  the  legacy  being  also  a  pprtion  whether  so  ex- 
pressed or  not;(ft)  it  seems  to  be  consistent  with  the  principles 

(z)  See  ante,  p.  265.  and  2  Bro.  C.  C.  166-521.  (a)  2  Bro.  C.  C.  166.  and 

Trimmer  v.  Bayne,  7  Ves.  508,  stated  infra,  p.  281.  (A)  See  ante,  p.  222, 

(c)  By  Lord  Eldon,  16  Ves.  486.  and  see  Brown  v.  Seltvin,  Forrest,  240. 

(d)  Vide  chap.  IV.  sec;  4,  passim,  and  particularly  p.  222. 

(e)  29  Car.  II.  sect.  22.  (  f)  17  Ves.  192. 
(,§•)  5  Ves.  79-85.  (A)  Supra,  p.  257. 


274  General  Legacies >  [Cn.  VI. 

which  admit  parol  evidence,  to  confirm  as  well  as  to  rebut  pre- 
sumptions, to  authorize  its  admission  directly,  and  in  the  first  in- 
stance in  regard  to  the  father's  intention  to  adeem  the  testamentary 
portion  by  an  immediate  advancement.  For  the  effect  of  the  per- 
mission is  not  to  raise  but  to  confirm  a  presumption.  The  case, 
however,  is  widely  different  from  that  of  a  stranger  and  his  legatee 
when  the  bequest  is  general,  and  parol  evidence  of  intention  is 
offered  either  to  convert  the  legacy  into  a  portion,  or  to  prove  that 
the  testator  intended  by  a  gift  to  adeem  a  general  bequest  he  had 
made.  In  neither  case  is  there  any  presumption  to  confirm  or  repel, 
and  the  oral  testimony  is,  in  the  first  case,  brought  directly  to  ex- 
plain and  alter  the  will,  and  in  the  second  to  revoke  a  legacy  by 
parol. 

The  same  observations  equally  apply  in  objection  to  the  admis- 
sion of  parol  evidence,  in  the  first  instance,  to  prove  that  a  putative 
father  intended  a  portion  by  a  legacy  he  had  given  generally  to  his 
natural  child ;  or  that  he  or  any  other  person  intended,  by  giving  a 
legacy,  to  assume  the  relation  of  legitimate  parent  to  the  legatee; 
for  were  parol  evidence  admissible  in  such  cases,  it  would  have  the 
effect  of  explaining  and  altering  the  effect  of  a  written  wilL(i) 

The  grounds  upon  which  the  several  conclusions  before  men- 
tioned are  founded,  have  been  minutely  detailed,  and  are  sub- 
mitted to  the  consideration  of  the  reader.  There  are,  however, 
cases  and  dicta  in  opposition,  which  will  be  our  next  subject. 

In  the  case  of  Chapman  v.  Salt,("k)  the  Master  of  the  Rolls  ad- 
mitted evidence  to  show  that  a  note  for  501.  given  by  Jl.  to  B.  was 
intended  by  Jl.  in  substitution  of  an  e.qual  sum  .bequeathed  by  him 
to  B.  •  The  reason  assigned  for  the  reception  of  the  evidenpe  was, 
that  the  question  was  testamentary,  aqd  the  evidence  as  a  necessary 
consequence  admissible.  But  what  his  Honour-  intended  by  the 
term  "  testamentary,"  does  not  appear.  .T.hiis,  however,  is  certain, 
that  there  are  many  testamentary  questions  in  which  parol  evidence 
cannot  be  received. 

Similar- to  the  last,  is  .the  case  of  Shudal  v.  Jekyll,(l]  in  which 
Lord  Hardwicke  admitted  oral  testimony  of  the  testator's  intention, 
that  what  he  had.  advanced  was  not  in  substitution  of  what  he  had 
given  by  will j  and  his  Lordship  observed, ^that  parol  declarations' 
had  been  constantly  admitted  in  those  instances.  But  the  cases 
have  been  sought  for  in  vain ;  and  it  is  to  lae  remarked,  that  the 
present,  being  a  case  of  a  stranger,  the  advancement  was  not  an 
:ademption  of  the  bequeSt;(m)  so  that  such  evidence,  even  though 
admissible,  was  not  necessary  to  entitle  the  legatee  to  Both  gifts. 
It  seems  difficult  to  discover  the  principle  upon  which  the  evidence 
was  admitted  in  the  last  case,  consistently  with  the  grounds  upon 
which  we  have  seen  that  it  has  bqen  received  in  other  instances; 
for  it  is  a  settled  rule  of  law,  that  a  person  is  entitled  to  as  many 
gifts  from  another,  as  the  donor  chooses  to  bestow;  consequently, 
an  advancement  and  a  general  legacy  are  accumulative,  and  there 
arises  no  presumption,  the  one  way  or  the  other,  to  be  confirmed  or 
repelled  by  parol  testimony.  In  such  a  case,  a  court  of  equity 

(z)  Sed  Fide,  18  Ves.  154;  but  see  the  remaining  observations  upon  this  subject. 
(*)  2  Vern.  646.  (/)  2  Atk.  516.  (m}  Ante,  p.  265. 


SECT.  II.]  and  their  Jldemption.  275 

would  surely  be  proceeding  to  an  extreme  length,  if  it  were  to  per- 
mit an  executor  to  show  by  parol  evidence,  that  a  testator  intended 
to  adeem  his  legacy  by  an  advancement;  and,  acting  upon  such  tes- 
timony, to  revoke  a  written  bequest  by  parol  declarations.  If, 
then,  that  evidence  would  be  rejected  (and  it  is  presumed  that  it 
would)  when  'offered  by  the  executor,  it  is  conceived  that  it  would 
be  equally  inadmissible,  if  produced  by  the  legatee,  to  prove  that 
the  testator  intended  him  to  take  the  legacy  as  well  as  the  sub- 
sequent gift. 

Lord  Thurlow  seems  to  have  followed  the  steps  of  Lord  Hardwicke 
in  Powel  v.  Cleaver,(n)  and  Grave  v.  Lord  Salisbury ;(o)  in  which 
latter  case  Lord  Thurlow  directed  a  Master  to  inquire  into  the  cir- 
cumstances of  the  advancement;  a  reference  that  his  Lordship 
would  not  have  made,  unless  he  had  bden  of  opinion  that  the  legacy 
might  be  adeemed  by  parol  declarations  of  the  testator  that  he  so 
intended. 

The  above  are  the  principal  cases  in» favour  of  the  admission  of 
parol  evidence  to  prove  the  ademption  qf  a  general  legacy  from  a 
stranger  by  a  subsequent  gift  or  advancement ;  cases  which  appear 
to  have  induced  Lord  Eldon  to  express  a  dubious  opinion  in  ex  parte 
Dubost,(p)  that  a  legacy  by  a  stranger  (though  a  bounty)  might  be 
proved  to  mean  a.  portion  by  evidence  applying  directly  to  the  gift 
proposed  by  the  -will.  And  towards  the  conclusion  of  the  case,  his 
Lordship,  referring  to  Powel  v.  Cleaver,  considered  that  case  an  au- 
thority for  admitting  evidence  of  the  testator's  intention,  when  he 
made  his  will,  to  give  a  portion  as  parent  (although  a  legacy  upon 
the  face  of  the  wilt,)  or  as  standing  in  loco  parentis,  and  to  satisfy  the 
bequest  in" the  whole  or  in  part  by  the  subsequent  advance. 

It  cannot  be  denied  that  the  cases  decided  by  Lord  Hardwicke 
arid  Lord  Thurlow,  and  the  opinion  of  so  profound  a  lawyer  as  Lord 
Eldon,  are  of  great  weight;  but  on  the  other  hand,  we  should  ad- 
vert to  the  grounds  upon  which  those  authorities  rest,  and  consider 
the  impolicy  ef  admitting  parol  evidence  beyond  the  limits  adhered 
to  in  the  several  cases  before  stated;  namely,  that  of  rebutting  equi- 
ties and  resulting  trusts,  and  of  confirming  or  repelling  existing  pre- 
sumptions, and  not  of  raising  such  presumptions.  When  to  these 
considerations'  we  add  the  doubts  of  Lord  Rosslyn  and  Sir  William 
Grant,  before  noticed, (q)  as  to  the  admissibility  of  parol  .evidence 
in  the  first  instance,  to  show  a  testator's  meaning  to  substitute  one 
provision  for  another ;  and  the  declaration  of  Lord  Eldon,  in  Herbert 
v.  Reid,(r]  that  parol  evidence  could  not  be  received  to  alter,  de- 
tract from,  .or  add  to  a  written  'will,  nor  to  prove  .upon  what  terms  a 
legacy  was  given,  it  may,  at  least,  be  asserted  that  the  .points  we 
have  been  discussing  are.  not  finally  settled.  Probably  it  will  not 
be  deemed  assuming  too  much  to  observe,  that  notwithstanding  the 
contrary  cases,  a  court  of  equity  will  not  now  admit  parol  evidence 
to  be  directly  applied  to  a  written  .will,  to  prove  that  a  legacy  by  a 
stranger  was  intended  as  a  portion ;  nor  that  a  legacy  not  expressed 
to  be  given  for  any  particular,  purpose,  was  intended  to  be  revoked 
by  a  subsequent  verbal  gift ;  nor  that  a  fegacy,  given  by  a  putative 

(n)  2  Bro.  C.  C.  517.          '    (o)  1  Bro.  C.  C.  425.  f/0  18  Ves.  153. 

(?)  Sufira,  p.  227.  (r)  16  Ves.  4'86. 


276  General  Legacies,  [Cn.  VI. 

father,  was  meant  as  a  portion;  nor  that  he,  or  another  person,  at 
the  time  he  gave  the  legacy,  intended  to  place  himself  in  loco  parentis. 

Taking  .it  for  granted  that  none  of  the  above  circumstances  can 
be  admitted  in  proof  when  the  parol  evidence  is  tendered  in  the  first 
instance,  and  directly  to  explain  what,  a  testator  meant  when  he  made 
his  will,  either  as  to  assumed  relationship  to  the  legatee,  or  in  re- 
gard to  the  nature  of  the  bequest;  yet  since  such  specres  of  testi- 
mony is  permitted  to  ascertain  who  was  the  author  of  the  gift,  when 
it  does  not  appear  upon  the  face  of  the  transaction,  and  also  to  as- 
certain whatever  is  wanting  to  show  the  consideration,  and./rom 
whom  it  moved,  provided  the  evidence  does  not  contradict  the  •in- 
strument,^) it  seems  to  follow,  that  the  assumption  by  a  person  of 
the  relation  of  parent  to  the  legatee  may  be  proved  circmtously; 
which  fact,  when  established,  will  be  attended  with  all  the  same 
consequences,  as  to  double  portions  and  ademptions,  which  would 
ensue  if  the  legacy  had  been  given  and  the  advancement  made  by 
the  father  of  the  donee  andylegatee.  It  seems,  however,  that  those 
results  must  be  obtained  frc>m  the  establishment  by.  parol  of  facts 
dehors  the  will  from  which  the  relation  may  be  presumed;  as  that 
the  father  of  the  legatee  was  dead  when  the  will  was  made;  that  the 
legatee  resided  with,"  was  supported  and  educated  by,  the  testator, 
and  that  he  treated  the  legatee  as  his  own  child  :(t)  from  such  evi- 
dence it  is  conceived  a  presumption  would  arise  that  the  testator 
had  assumed  the  office  and  duty  of  a  parent ;  and  this  presumption, 
attaching  itself  to  the  legacy  and  to  the  subsequent  advancement, 
would  have  the  effect  of  converting  th^e  legacy  into  a  portion,  and 
thus  subject  it  to  the  influence  of  the  rule  respecting  ademption,  as 
in  the  case  of  parent  and  child.  But  as  this  consequence  follows 
from  presumption  merely,  it  may  be  defeated  by  evidence  of  inten- 
tion, in  opposition  to  such  presumption ;  or,  on  the  other  hand,  it 
may  be  confirmed 'by  corresponding 'testimony.  By  this  method  of 
procedure  no  evidence  of  intention  is  directly  adduced  in  explana- 
tion of,  or  in'contradiction  to,  the' written  will;  but  .the  object  of 
the  testator  is  attained  without  infringing  upon  any  rule  of  law,  for 
the  assumed  relation  is. presumed  upon  the  evidence  of  facts,  proof 
of  which,  as  we  have  seen,  is  not  to  be  refused. 

The  above  reasoning,  it  will  be  observed,  does  ne/t  apply,  when 
the  testator  is  a  stranger,  not  standing  in  loco  parentis,  and  it  is  pro- 
posed to  offer  parol  evidence  of  his  declared  intention,  at  the  time 
of  the  advancement,,  to  substitute  the  gift  for  the  legacy  ;  in  that 
case  there  ;s  no/collaferal  fact  to  be  established  inconsistent  with 
the  legal  right  of  the  legatee  to  take  both  the  gift  and  the  legacy. 
There  is  no  presumption  from  the  advancement  of  an  intent  to 
adeem  the  bequest  because  the  law  .gives  both  to  the  legatee  ;(w)  so 
that  the  evidence,  if  produced  in  that  case,,  would  tend  directly  to 
repeal  a  written  bequest ;  for  which  it  is  conceived  to  be  inadmissi- 
ble. And,  .as  we  have  seen  that  oral  testimony  is-  tiot  allowed  to 
prove  a  consideration  inconsistent  with  an  instrument  in  writing,  it 
should  seemlhat  parol  evidence  of  the  testator's  intention,  to  substi- 
tute the  gift  for  the  legacy,"  and  thus  to  defeat  the  latter,  is  likewise 
inadmissible. 

(«)  17  Ves.  192.  (t")  These  conclusions  are  drawn  from  the  case  supposed 

by  Lord  Hardivicke  in  Shudalv.  -Jekyll,  2  Atk.  518.  (u)  Supra,  p.  265, 


SECT.  II.]  and  their  Jldemption.  277 

The  last  observations,  however,  must  be  considered  as  confined  to 
instances  where  the  legacy  is  general,  and  the  testator  does  not  stand 
in  loco  par entis ;  for  we  have  seen  that  when  a  legacy  is  given  by  a 
stranger  expressed  to  be  for  a  particular  purpose,  and  he  afterwards 
advances  money  for  the  same  purpose,  a  presumption  arises  that  he 
intended  the  gift  in  substitution  of  the  bequest.(a:)  When,  there- 
fore, the  will  declares  that  the  consideration  for  the  legacy  is  that  it 
may  answer  a  particular  object,  a  court  of  equity  cannot  refuse  to 
receive  parol  testimony  of  that  object  having  been  completed  by  the 
testator  during  his  life.  The  presumption  is,  in  this  case,  inchoate 
from  the  expressions  in  the  will,  and  its  completion  can  be  only  as- 
certained by  inquiry,  or  the  admission  of  parol  evidence  of  the  pur- 
pose for  which  the  subsequent  advancement  was  made.  The  proof 
does  not,  as  in  the  other  instance,  militate  against  the  instrument,  or 
its  legal  import.  And  if  the  advancement  appear  to  have  been  made 
for  the  same  purpose  as  that  expressed  in  the  will,  the  legacy  is  ne- 
cessarily adeemed  upon  the  presumption  arising  from  the  unity  of 
object  and  its  performance  by  the  testator  himself;  but  since  the 
ademption  is  founded  upon  presumption,  it  follows,  that  such  pre- 
sumption may  be  repelled  or  confirmed  by  oral  testimony,  as  before 
observed.  (?/) 

Under  this  head  may  be  classed  the  case  of  Debeze  v.  Mann,(z) 
in  which  a  legacy  of  1325Z.  was  given  by  the  testator  to  his  putative 
daughter,  to  fit  her  out  for  India,  or  to  dispose  of  her  in  marriage. 
He  afterwards,  upon  her  marriage,  advanced  for  her  1000Z.  as  a  por- 
tion by  giving  a  bond  to  her  intended  husband ;  and  he  subsequently 
to  the  marriage,  gave  her  600Z.  to  buy  furniture ;  the  total  advance- 
ment being  16001.  At  the  first  hearing  of  the  cause,  Lord  Thurlow 
admitted  evidence  of  a  parol  declaration  by  the  testator,  to  the  hus- 
band's father  before  the  marriage,  that  there  would  be  more  at  his 
death  than  lOOOl.  for  his  putative  daughter,  upon  which  evidence 
his  Lordship  decided  that  the  presumption  of  the  legacy  having  been 
adeemed  by  the  advance  of  the  1000Z.  was  repelled;  and  that  there 
was  neither  evidence  nor  presumption  to  show  that  the  600Z.  was  an 
execution  of  the  testamentary  gift.  It  is  proper  to  remark  that  Lord 
Thurlow  said  upon  rehearing  the  cause,  that  he  did  not  rest  his  judg- 
ment on  the  witness  referring  to  an  intention  in  the  testator  to  do 
more  at  his  death  for  his  putative  daughter.  But  if  Mr.  Brown's  re- 
port of  the  case  be  correct,  it  is  clear  that  his  Lordship's  decree  was 
founded  upon  the  fact  of  the  testator's  declaration,  that  his  advance- 
ment was  not  all  he  intended  to  do  for  his  daughter.  And  "  con- 
necting the  future  advancement  of  6001.  with  the  testator's  death,  by 
the  expression  used  about  his  life,  as  an  advance  at  that  time,  the 
principleof  the  decision  appears  to  be,  that  the  advancement  of  10001. 
and  600/.  would  not,  within  the  meaning  of  the  conversation  between 
the  two  fathers,  adeem  what  was  given  by  the  will. "(a) 

Having  in  the  last  few  pages  attempted  to  ascertain  in  what  in- 
stances parol  evidence  is  admissible  to  prove  an  intention  to  adeem 
portions  and  legacies  by  subsequent  advancements ;  it  is  proposed 
to  consider  in  the  next  place — 

(JT)  Ante,  p.  265.  (y)  Sufira,  p.  339.  (z)  2  Bro.  C.  C.  165. 

(a)  ByLord.fi/rfort,  7Ves.  517. 
VOL.  i.  N  n 


278  General  Legacies,  [Cn.  VI. 

5.  What  testimony  will  and  will  not  be  sufficient  to  prove  the  tes 
tator's  intention  so  as  to  effect  an  ademption,  when  parol  evidence 
can  be  received  on  those  subjects. 

It  appears  from  the  view  which  has  been  taken  of  the  admissibility 
of  parol  evidence,  that  it  is  only  allowable  to  confirm  or  repel  pre- 
sumptions. In  order  to  rebut  the  presumption  of  ademption  from  a 
subsequent  advancement,  the  testimony  must  be  clear  and  relevant, 
not  merely  presumptive,  but  a  demonstration,  from  the  language  and 
conduct  of  the  author  of  both  provisions,  that  he  considered  the  gift 
by  will  as  a  subsisting  benefit. (6)  And  it  is  required  to  be  equally 
so  whether  the  legacy  be  a  portion,  or  be  given  by  a  stranger  for  a 
particular  purpose,  the  advancement  for  the  same  purpose  perfect- 
ing, as  we  have  seen,  the  presumption  of  an  intent  to  adeem  the  be- 
quest. We  shall, — 

First,  consider  what  evidence  will  be  sufficient  to  repel  the  pre- 
sumption of  an  ademption  from  a  subsequent  advancement. 

Since  the  advancement  must,  as  we  have  seen,  be  made  for  the 
same  purpose  as  the  legacy  was  given,  in  order  to  found  a  presump- 
tion of  an  intent  that  the  former  should  go  in  substitution  of  the  lat- 
ter, it  follows,  that  if  the  bequest  be  of  a  portion,  and  the  parol  evi- 
dence show  that  the  advance  Was  expressed  to  be  given  for  a  partial 
or  a  different  purpose ;  or  if  the  bequest  were  of  a  legacy  for  a  par- 
ticular object,  and  the  evidence  proved  that  the  subsequent  gift  was 
made  for  another,  the  testamentary  portion  or  legacy  would  in  nei- 
ther instance  be  adeemed  by  the  posterior  advancement. 

In  Robinson  v.  Whitley,(c)  Jl.  the  father  bequeathed  to  his  daugh- 
ter, B.  WOOL  to  be  paid 'upon  her  marriage.  She  married  during 
.#.'*  life  in  December  1801,  the  will  being  made  in  the  preceding 
November.  Some  months  after  the  marriage  A.  paid  to  B.'s  hus- 
band 470Z.  part  of  500Z.  which,  as  appeared  from  the  evidence  of  C. 
.#.'s  widow,  he  declared  to  her  in  a  private  conversation  before  such 
marriage,  that  he  would  give  B,  so  soon  as  she  should  be  united  to 
her  present  husband,  as  they  would  want  furniture.  C.  further  de- 
posed as  to  her  belief  that  A.  meant  the  5001.  in  addition  to  what  he 
might  leave  B.  by  his  will ;  and  that  she  never  heard  him  declare  an 
intention  that  such  sum  should  be  taken  in  lieu,  or  in  part  satisfaction 
of  the  legacy.  Sir  W.  Grant,  M.  R.  decided  that  A.  the  father  hav- 
ing appropriated  the  500Z.  to  a  particular  purpose,  which  appeared  to 
be  the  sole  motive  for  the  advance,  but  which  he  had  not  expressed 
in  giving  the  testamentary  portion,  the  advance  was  to  be  consider- 
ed a.  new  gift,  the  occasion  of  which  repelled  the  presumption  that  it 
was  meant  in  lieu  or  in  part  payment  of  the  legacy.  Indeed  if  the 
presumption  had  prevailed,  it  should  seem,  from  what  has  been  no- 
ticed in  a  preceding  page,(d)  that  the  whole  portion  would  have  been 
adeemed,  since  the  case  supplied  no  evidence  of  an  intent  to  restrict 
that  general  presumption  to  a  partial  satisfaction. 

If  the  evidence  prove  that  a  testator,  when  he  made  an  advance- 
ment, referred  generally  to  his  will,  so  as  to  impress  his  auditors  with 
ideas  that  the  donee  should  be  further  benefitted  by  his  death ;  such 
reference  will  repel  the  presumption  of  an  intention  to  adeem  the 
portion  or  legacy  :  so  that  if  the  testator  declared,  that  "  the  donee 
was  the  object  of  his  bounty,  and  therefore  greater  expectations  might 

(*)  1  Ves.  jun.  108.   7  Ves.  522.  (c)  9  Ves,  577.          (rf)  Sujtra,  p.  259. 


SECT.  II.]  and  their  Jldemption.  279 

be  formed  upon  that  circumstance,"  or  if  he  said,  "  she  is  in  my 
will,"(e)  or  to  any  such  effect;  the  declaration  would  preserve  the 
testamentary  gift  to  the  legatee, (/) 

The  consequence  must  necessarily  be  the  same  when  a  testator  is 
more  explicit  upon  making  an  advancement,  and  alludes  to  an  inr 
tention  to  leave  something. to  the  donee,  at  his  death,  but  declines 
to  incur  any  obligation  to  do  so. 

Thus  in  Shudal  v.  Jekyll,(g]  the  testator  declared  before  the  mar- 
riage of  his  niece  and  legatee,  and  when  he  gave  security  for  the 
advancement  he  made  upon  that  occasion,  "  that  he  would  leave 
something  to  her  by  his  will ;  but  that  he  would  not  be  considered 
as  under  any  obligation  to  do  so."  This  declaration  was  held  by 
Lord  Hardwicke  to  be  sufficient  to  repel  the  presumption  of  an  in- 
tent to  adeem  the  bequest  by  the  advancement,  and  to  entitle  the 
niece  to  the  legacy. 

So  in  Debeze  v.  Mann,  before  stated, (h)  Lord  Thurlow  consider- 
ed the  declaration  of  the  testator  to  the  father  of  his  putative  daugh- 
ter's intended  husband,  "  that  there  would  be  more  for  her  at  his 
death  than  1000Z."  to  be  sufficient  evidence  to  rebut  the  presump- 
tion, that  the  testator  meant  by  an  advancement  on  his  daughter's 
marriage,  to  adeem  a  sum  of  money  which  he  had  previously  left 
her  by  his  will. 

And  in  Ellison  v.  Cookson^i)  Lord  Thurlow  was  of  opinion,  that 
if  the  evidence  had  gone  no  farther  than  the  conversation  between 
the  testator  and  the  person  employed  by  the  father  of  the  intended 
husband  of  his  daughter,  which  was,  that  the  testator  agreed  to  give 
her  5000/.  as  a  portion,  and  declared,  "  that  she  would  have  some- 
thing considerably  more  at  his  death,  equal  or  nearly  equal  to  what 
he  intended  as  her  portion,"  such  declaration  would  have  entitled 
the  daughter  to  the  provisions  made  for  her  by  the  will,  notwith- 
standing the  portion  advanced  upon  her  marriage ;  one  of  which 
provisions  was  a  portion  of  5000Z.  But  in  that  case  the  daughter 
had  expectancies  from  her  mother  founded  upon  the  will ;  and  a 
letter  having  been  written  by  the  testator,  explanatory  of  the  con- 
versation which  had  passed  between  himself  and  the  person  before 
alluded  to,  the  Court  was  of  opinion,  that  the  terms  of  the  letter 
might  be  applied  to  and  satisfied  by  reference  to  the  daughter's  ex- 
pectancies from  her  mother,  without  extending  to  the  testamentary 
portion  of  5000Z.  and  -that,  therefore,  the  evidence  was  not  suffi- 
ciently clear  to  show  that  the  testator  intended  such  portion  to  sub- 
sist, notwithstanding  the  one  he  had  given  upon  his  daughter's  mar- 
riage, so  as  to  prevent  the  application  of  the  presumption,  that  the 
advancement  was  in  ademption  of  the  legacy. 

This  introduces  us  to  the  consideration, 

Secondly,  of  the  evidence  deemed  insufficient  to  repel  the  pre- 
sumption of  ademption  by  a  subsequent  advancement. 

It  has  been  observed  that  parol  evidence,  in  order  to  have  the  ef- 
fect of  rebutting  a  presumption,  is  required  to  be  satisfactory;  that 
is,  demonstrative  of  the  testator's  intention,  from  his  language  and 

(<?)  7  Ves.  520.        (/")  Per  Lord  Thurloio'm  Ellison  v,  Cookson,  1  Ves.  jun.  111. 
(£')  2  Atk.  516.         (//)  Suflra,  p.  277.  and  2  Bro.  C.  C.  165. 
(j)  1  Ves.  jun.  109.  and  more  fully  stated  infra. 


280  General  Legacies,  [Cn.  VI. 

conduct,  that  he  considered  the  gift  by  will  as  a  subsisting  benefit, 
notwithstanding  the  advance.  Hence  conjecture  or  probability  that 
he  meant  the  legacy  to  continue  after  the  advancement,  will  be  insuf- 
ficient ;  so  that,  if  the  evidence  amount  to  no  higher  degree  of  cer- 
tainty, the  presumption  that  the  advance  was  meant  in  ademption  of 
the  legacy  will  not  be  repelled.  Suppose,  then,  the  legatee  to  be 
entitled  to  several  provisions,  as  a  portion,  by  the  will,  and  the  parol 
evidence  produced  to-  repel  the  presumptive  ademption  of  them  does 
not  clearly  show,  whether  the  father  by  his  subsequent  advancement 
intended  that  the  whole,  or  which  of  his  testamentary  provisions 
should  continue  to  subsist ;  the  general  presumption,  adeeming  the 
portion  by  the  subsequent  advance,  will  prevail. 

Accordingly  in  Ellison  v.  Cookson,  first  determined  by  Lord  Ken- 
yon,(k)  and  secondly,  by  Lord  Thurlow,(l)  Jl.  the  father,  bequeath- 
ed the  residue  of  his  fortune  to  his  wife,  charging  her  with  the  edu- 
cation of  his  children,  and  empcnvering  her  to  provide  for  them  at 
her  discretion.  After  the  execution  of  the  will,  he  wrote  upon  the 
paper  which  contained  his  testament,  instructions  for  her,  by  which 
he  appointed  5000/.  to  each  of  his  two  unmarried  daughters ;  and 
with  regard  to  the  surplus  and  the  savings  of  his  wife,  he  directed 
the  first  to  be  applied  to  the  purposes  before  mentioned,  and  he  or- 
dered the  second  to  be  disposed  of  by  her  among  such  of  his  chil- 
dren as  she  thought  proper.  After  this,  Jl.  advanced  with  his  daugh- 
ter 5000Z.  upon  her  marriage ;  and  the  question  being,  whether  the 
testamentary  portion  of  the  like  amount  was  adeemed  by  the  ad- 
vancement in  consequence  of  the  established  presumption ;  parol 
evidence  was  offered  of  Jl.'s  intention,  that  the  portion  by  will  should 
continue  notwithstanding  the  advance.  The  evidence  consisted  of 
a  conversation  with  B.  (the  brother-in-law  of  the  intended  husband, 
and  agent  of  the  husband's  father,)  and  of  letters  which  passed  be- 
tween them  before  the  marriage;  and  it  appeared  from  the  former 
that  A.  agreed  to  give  his  daughter  50001.  as  a  portion,  and  said  that 
she  should  have  something  considerably  more  'at  his  death,  equal  or 
nearly  equal  to  what  he  intended  for  her  as  a  portion.  Now,  as  the 
reference  was  made  to  .#.'$  will  generally,  it  would  have  entitled  the 
daughter  to  all  the  benefit  it  contained  in  her  favour  ;(m)  but  in  an- 
swer to  a  letter  from  B.  signifying  the  acquiescence  of  the  intended 
husband  in  ASs  proposal  in  the  verbal  conversation  before  detailed, 
•ft.  explained  what  he  meant  by  the  expressions  he  had  used,  and 
which  he  stated  to  have  been  misunderstood.  The  effect  of  which 
explanation  the  Court  considered  to  import,  that  A.  meant  no  more 
than  that  the  advancement  should  be  in  addition  to  what  his  daugh- 
ter might  probably  or  possibly  derive  from  her  mother's  appointment 
under  the  authority  of  his  will,  if  the  mother  survived  him  ;  thus  re- 
stricting the  generality  of  the  conversation  to  this  particular  contin- 
gent benefit,  and  consequently  leaving  the  advancement  to  operate 
upon  the  testamentary  portion  of  50001.  as  if  there  had  been  no  evi- 
dence whatever.  The  decrees,  therefore,  were,  that  the  latter  sum 
was  adeemed  by  the  advance  of  equal  amount. 

(£)  2  Bro.  C.  C.  307. 

(0  1  Ves.  jun.  100.    3  Bro.  C.  C.  61.  S.  C.  and  approved  by  Lord  Eldon  in 
Trimmer  v.  Bayne,  7  Ves.  517.  (m)  Debeze  v.  Mann,  2  Bro.  C.  C.  165. 


SECT.  II.]  and  their  Jldemption.  281 

So  in  Trimmer  v.  Bayne,(n)  a  legacy  of  5000Z.  was  vested  in  trus- 
tees as  a  portion,  to  pay  the  interest  to  his  natural  daughter  B.  till 
her  marriage,  and  on  the  happening  of  that  event,  to  pay  the  capital 
to  her  separate  use.  J2.  afterwards,  in  December,  1794,  and  in  con- 
templation of  B.'s  marriage,  agreed  to  advance  to  C.  the  intended 
husband,  20001.  in  part  of  a  portion  with  B,  and  to  give  a  bond  for 
the  further  sum  of  5000Z.  which  was  accordingly  executed,  the  inte- 
rest whereof  was  to  be  paid  by  the  trustees  in  the  settlement  to  the 
separate  use  of  B.  during  the  marriage,  and  afterwards  to  C.  if  he 
survived  B. ;  and  upon  the  death  of  the  survivor,  the  principal  was 
to  be  divided  among  the  children  of  the  marriage  according  to  the 
appointment  of  A.  The  marriage  took  place  ;  and  Jl.  only  paid  to 
C.  500Z.  of  the  20001.  leaving  the  residue  of. that  sum,  and  the  5000Z. 
upon  his  bond,  owing  at  his  death.  The  question  was,  whether  the 
legacy  of  5000Z.  was  adeemed  by  the  portion  provided  for  B.  upon 
her  marriage,  it  being  admitted  that  as  both  provisions  were  made 
for  the  same  purpose,  the  former  would  be  adeemed  by  the  latter, 
unless  the  presumption  could  be  destroyed  by  evidence  of  a  contra- 
ry intention.  In  order,  therefore,  to  entitle  B.  to  the  testamentary 
portion,  parol  evidence  was  produced  and  admitted,  consisting  of  the 
depositions  of  one  Mrs.  Brown  (a  person  having  no  interest  in  the 
affair,  nor  employed  by  any  of  the  parties)  of  what  passed  in  conver- 
sation between  her  and  A.  three,  months  before  the  settlement  was 
made  ;  the  substance  of  which  was,  that  A.  upon  her  inquiries  as  to 
the  portion  he  meant  to  give  B.  said  5000Z. ;  and  being  pressed  to 
increase  the  sum,  he  answered,  "  she  is  in  my  will,"  intimating  when 
desired  to  give  the  whole  immediately,  that  he  was  only  worth  10,OOOZ. 
Lord  Eldon  determined  that  the  evidence  was  insufficient  to  rebut 
the  presumption  of  an  intent  to  adeem,  which  prevailed  in  those 
cases.  And  his  Lordship,  after  showing  the  little  weight  to  be  placed 
in  such  testimony  from  the  clear  intention  of  the  testator  to  disap- 
point and  mislead  the  officious  curiosity  of  the  witness,  in  giving  her 
false  information,  as  was  proved  by  the  will  and  settlement,  both  in 
regard  to  the  amount  of  his  fortune  and  his  ready  money  advance, 
decided  the  question  upon  the  unanswerable  principle,  that  evi- 
dence (admitting  it  to  be  true  and  free  from  the  objection  last  men- 
tioned) of  what  a  person  meant  to  do  three  months  before  the  execu- 
tion of  the  settlement,  was  very  deficient  and  unsatisfactory  evi- 
dence of  his  intention,  when  that  deed  was  completed  ;  for,  said  his 
Lordship,  "  it  does  not  necessarily  follow,  if..#.  in  August  meant  to 
advance  50001.  and  leave  a  demand  under  his  will,  that  he  intended 
in  December  to  advance  20001.  in  money,  and  agree  to  advance 
50001.  and  then  to  leave  B.  her  chance  under  the  will."(o)  Lord 
Eldon  concluded  a  very  able  judgment  in  declaring  that,  upon  the 
whole,  the  evidence  was  not  so  connected  with  the  settlement  in 
December  1794,  as  to  destroy  the  effect  of  that  act,  operating  as  an 
ademption  of  the  legacy  ;  and  that  it  would  be  extremely  dangerous 
to  say  that  such  evidence  was  sufficient  to  prevent  the  attaching  of 
clear  settled  rule  of  law,  if  it  were  not  clear  and  satisfactory  to  that 
point,  and  to  which  it  must  be  in  order  to  rebut  the  presumption 
according  to  that  rule,  arising  out  of  the  effect  of  the  settlement. 

(rc)  7  Ves.  508.  (o)  7  Ves.  621. 


282  General  Legacies ,-fyc.  [Cn.  VI. 

The  last  case  suggests  the  remark,  that  the  peculiar  circumstances 
which  induced  the  testator  to  express  himself  to  the  witness  Brown, 
as  before  mentioned,  prevented  his  declaration  that  his  daughter 
••  \\.is  in  his  will,"  having  the  effect  of  repelling  the  presumptive 
ademption,  and  which,  as  we  have  seen,  would  otherwise  be  the  con- 
sequence of  such  and  similar  expressions. 

It  remains  to  consider, 

6.  The  different  degrees  of  importance  to  be  attached  to  parol 
evidence  in  respect  of  the  periods  when  the  verbal  declarations  were 
made,  and  the  situation  of  the  witness  to  whom  the  testator  express- 
ed his  sentiments. 

These  points  were  alluded  to  by  Lord  Eldon,  in  the  last  case,  who 
seems  to  have  been  of  opinion,  that,  although' it  did  not  appear  that 
the  witness  Brmvn  was  employed  as  an  agent,  or  related  to  any  of 
the  parties,  or  in  the  slightest  decree  interested  in  the  affair,  her 
evidence  of  what  the  testator  declared  was  admissible  ;  and  his 
Lordship  observed,  that  a  testator's  declarations  were  evidence, 
whether  consisting  of  conversations  with  people  in  no  wise  con- 
cerned in  it,  or  with  persons  making  impertinent  inquiries  and  draw- 
ing from  him  angry  answers,  or  in  whatever  form  the  declarations 
were  made.  But  his  Lordship  remarked,  that  such  declarations  were 
entitled  to  very  different  weight  arid  credit  in  relation  to  the  time 
when,  and  the  circumstances  under  which  they  were  uttered.  Accor- 
dingly in  Debeze  v.  Mann(p)  before  stated,(</)  the  conversation  of 
the  two  fathers  upon  the  subject  of  the  very  contract  between  two 
persons  under  parental  obligations  to  provide  rationally  for  the  in- 
terests of  their  children,  is  entitled  to  much  more  consideration 
than  some  others.  The  like  observation  applies  to  the  case  of  Elli- 
son v.  Cookson,(r)  before  also,  stated, (s)  the  witness  being  an 
authorized  agent  in  the  treaty,  and  deposing  to  declarations  between 
himself  and  the  principal  in  settling  the  terms  of  the  marriage  con- 
tract.^) 

Upon  the  whole  the' law  may  be  considered  to  be  thus  settled: 
First,  that  declarations  made  by  the  testator  to  any  person,  whether 
concerned  in  the  business  of  the  advance  or.  not,  are  admissible  in 
evidence.  Secondly,  that  declarations  of  the  testator,  at  the  time  of 
his  making  and  settling  the  advancement,  are  of  more  consequence 
that  his  expressions  afterwards;  since  the  former  are  reasonably  to 
be  presumed  as  truly  explanatory  of  what  was  his  real  intention  at 
the  time  of  pronouncing  them,  in  regard  to  the  transaction  in  a 
course  of  immediate  execution ;  and  that,  therefore,  if  it  be  by  any 
medium  of  proof  sufficiently  ascertained  what  the  actual  intention 
was  at  the  time  of  advancement,  it  is  immaterial  what,  for  any  par- 
ticular reason,  the  donor  may  have  thought  proper  at  a  subsequent 
period  to  declare  his  intention  to  have  been.(w)  And  thirdly,  that 
declarations  after  the  advance  and  settlement  of  what  the  testator 
had  done,  are  entitled  to  more  credit  than  those  made  previously  to 
the  transaction,  as  to  what  he  intended  to  do  ;  for  that  intention  may 
have  been  changed  in  the  interval,  or,  as  in  Trimmer  v.  Bayne,(x) 

(/O  2  Bro.  C.  C.  165.  (?)  Supra,  p.  277.  (r)  1  Ves.  jun.  100. 

(»)  Supra,  p,  279.  (0  See  7  Yes.  272. 

(w)  17  Ves.  453.  2  Meriv.  23.  (.r)  Supra,  p.  281. 


SECT.  II.]  General  Legacies.  283 

they  may  have  been  made  with  a  view  of  misrepresenting  what 
the  testator  meant  to  do,  and  what  his  actual  intentions  were 
in  relation  to  the  advance.  Hence,  in  the  case  last  named,  the 
declarations  of  the  testator,  made  three  months  before  the  advance-, 
ment,  were  not  allowed  to  counteract  the  effect  of  that  act,  viz. 
the  presumed  ademption ;  and  in  Langham  v.  Sandford,(y)  little 
importance  was  attached  to  what  the  testator  declared  after  the  date 
of  his  will. 


CHAPTER  VII. 

General  Legacies  and  their  Abatement.    The  Equity  of  Lega- 
tees to  follow  the  Jlssets.  And  the  Refunding  of  Legacies. 

SECT.  I.  Of  the  abatement  of  General  Legacies.  • 

1. — What  legacies  to  abate. 

2. — Heir's  liability  in  respect  of  lapsed  interests  in  lands 

accruing  to  him. 

3. — As  to  claims  of  particular  general  .legatees  to  a  pri- 
ority of  payment  to  others,  so  as  to  be  exempt  from 
abating ;  considering — 
1. — Legacies  given  as  mere  bounties. 
2. — Effect  of  a  testator's  declarations ;  and  of  his  in- 
tentions otherwise  shown  to  give  a  preference  ;  and 
3. —  When  a  legacy  is  founded  upon  a  valuable  con- 
sideration. 
4. — Of  the  abatement  of  general  legacies  of  stock. 

SECT.  II.  Rights  of  Legatees  to  follow  the  assets  when  dis- 
posed of  by  the  executor  and  the  produce  wasted. 
1. — Power  of  executors  to  sell  and  pledge  the  estate. 
2. — Exceptions  to  that  power  ;  and, 
3. — Effect  of  acquiescence  upon  the  right  of  legatees  to 
follow  the  assets. 

SECT.  III.  Of  the  refunding  of  Legacies. 
1 . — At  the  suit  of  executors. 
2. — At  the  suit  of  creditors ;  and, 
3. — At  the^uit  of  unsatisfied  legatees. 
4. — As  to  interest  payable  on  the  sum  refunded. 

CONNECTED  with  the  ademption  of  general  legacies  (the  subject 
treated  of  in  the  last  chapter)  is  the  abatement  of  them.  The  one  is 
the  performance  of  the  bequest  by  the  testator  himself,  instead  of 
leaving  it  to  be  executed  by  his  executors  ;  and  the  other  is  occasion- 
ed by  a  deficiency  in  the  assets  to  pay  all  the  testator's  obligations 
and  testamentary  dispositions.  The  abatement  of  specific  legacies 
has  already  been  discussed,(«)  and  what  remains  further  to  be  con- 
sidered under  the  head  of  contribution  is  : 

(y)  17  Ves.  4.35.    2  Meriv.  23.  (a)  Chap.  V. 


284  General  Legacies,  [Cn.  VII. 

SECT.  I.  The  Abatement  of  Legacies  that  are  general. 
1.  With  respect  to  the  arrangement  among  the  legatees. 

While  any  of  the  assets  not  specifically  bequeathed  remain,  such 
as  are  specifically  bequeathed  are  not  to  be  applied  in  payment  of 
debts,  although  to  the  complete  disappointment  of  the  general  lega- 
cies ;  and  specific  legacies  and  legacies  in  their  nature  specific,  i.  e. 
specific  in  consequence  of  the  appropriation  of  a  fund  by  the  testa- 
tor for  their  payment,  will  not  be  under  the  necessity  of  abating 
with  the  general  legacies  for  the  reasons  mentioned  in  preceding 
parts  of  this  treatise.(ft)  But  if  the  fund  provided  for  the  discharge 
of  the  legacies  in  their  nature  specific  fail,  or  be  deficient,  they  are 
nevertheless  so  far  general  legacies  as  to  entitle  the  persons  to  whom 
they  are  given  to  call  upon  the  general  legatees  proportionally  to 
contribute  towards  the  loss  or  deficiency,  as  was  shown  in  the  fifth 
chapter,  for  the  rule  is  general,  that  if  the  assets  prove  insufficient 
to  pay  all  the  debts  and  legacies,  the  general  legatees  must  abate 
proportionally  inter  se,  and  not  only  in  respect  of  debts,  but  in  pay- 
ment of  costs,  when  a  suit  has  been  instituted. (c) 

But  a  residuary  legatee  has  no  right  to  call  upon  particular  lega- 
tees to  abate.  The  whole  personal  estate  not  specifically  bequeath- 
ed, must  be  exhausted  before  those  legatees  can  be  obliged  to  con- 
tribute any  thing  out  of  their  bequests.  The  principle  is  this,  that  the 
testator  only  intended  for  the  residuary  legatee  that,  which  (if  any 
thing)  should  remain  after  all  the  trusts  of  the  will  were  performed. 

It  is  to  be  remarked,  that  Lord  Cowper,  in  Dyose  v.  Dyose,(d) 
made  a  decree  contradictory  to  the  above  observations.  In  that 
case  the  testator  was  possessed  of  20,0001.  which  consisted  of  a  few 
items,  viz.  East  India  stock,  bank  stock,  and  money  in  the  funds ; 
and  he  gave  30001.  a  piece  to  his  two  youngest  sons,  and  the  surplus 
to  his  eldest  son,  appointing  his  wife  executrix,  who  married  B. ;  B. 
wasted  the  estate  and  went  abroad ;  and  there  being  a  deficiency  of 
assets  from  that  cause,  the  question  was,  whether  the  eldest  son  was 
entitled  to  any  thing  until  all  the  debts  and  legacies  were  paid  9  for 
if  he  were,  then  his  brothers  would  be  obliged  to  abate  proportion- 
ally with  him.  And  Lord  Cowper,  C.  was  of  opinion  that  the  son 
was  to  be  considered  a  legatee  for  the  value  of  what  would  have 
been  the  surplus,  after  payment  of  the  debts  and  legacies,  if  there 
had  been  no  waste  of  assets,  upon  the  ground  of  the  testator's  know- 
ledge of  the  amount  of  his  property  when  he  made  his  will,  inferred 
from  the  few  particulars  of  which  it  consisted,  and  of  his  presumed 
intention  to  give  the  residue  as  a  particular  bequest  to  the  son. 

The  principle  and  authority,  however,  of  the  last  case  was,  with 
great  propriety,  questioned  by  Lord  Thurlow  in  Fonnereau  v. 
Poyntz,(e)  who  expressed  himself  to  the  following  effect : 

"  As  to  the  case  of  Dyose  v.  Dyose,  there  was  no  ambiguity,  either 
latent  and  patent ;  there  was  a  legacy  of  3000Z.  a  piece  given  to  the 
youngest  sons,  the  residue  to  the  eldest,  and  the  question  was, 
whether  the  residuary  legatee  should  have  any  thing  or  nothing ; 
which,  if  not  mixed  with  the  affair  of  the  executrix  having  wasted 
the  assets  of  the  testator,  is  a  simple  question,  whether  a  testator 

(£)  Chap.  Ill,  and  V,    (c)  Barton  v.  Cooke,  5  Ves.  464.  also  see  4  Bro.  C.C.  350. 
(rf)  1  P.  Will.  305.        (c)  \  Bro.  C.  C.  478.  see  also  Pre.  Ch.  401. 


SECT.  I.]  and  their  Abatement.  285 

giving  a  larger  legacy  than  he  is  worth,  and  the  residue  to  another, 
there  could  be  a  residue1?  I  cannot  agree  to  the  law  of  that  case, 
for  in  such  an  instance,'  if  the  testator  did  not  leave  a  residue  beyond 
the  value  of  the  legacies,  the  residuary  legatee  takes  nothing.  So 
where  the  pecuniary  legatees  abate  inter  se  the  residuary  legatee 
takes  nothing;  and  the  law  of  the  Court  is,  that  the  intention  of  a 
testator  in  making  a  specific  bequest,  or  giving  a  pecuniary  legacy, 
cannot  be  controlled  by  the  statement  of  his  fortune. "(/) 

2.  A  question  may  arise  between  the  heir  or  devisee  of  real  estate 
and  legatees,  as  to  the  obligation  of  the  latter  to  abate  where  the 
lands  are  liable  to  the  legacies,  some  of  which  happen  to  lapse  by 
the  deaths  of  legatees,  or  are  void  by  being  given  to  charitable  uses, 
and  the  estate  is  sufficient  to  pay  all  the  legacies  that  are  subsisting 
and  well  given,  but  deficient,  if  the  heir  or  devisee  be  entkled  to  so 
much  of  the  lands,  or  their  produce,  as  is  of  the  value  of  the  lapsed 
interests  or  of  the  void  bequests.  Upon  the  case  of  lapse,  Lord 
Eldon  expresed  himself  in  thess  words:  "If  a  man  devise  his  real 
estate  in  trust  to  pay  to  several  persons  WOOL  each,  and  any  of 
them  die  during  his  life,  in  the  event  of  a  deficiency,  the  others  must 
abate.  But  if  the  devise  be  in  trust  to  pay  his  debts  and  legacies, 
and  he  give  several  legacies,  and  a  legatee  die,  the  fund  (i.  e.  the 
whole  real  estate)  is  a  trust  for  the  benefit  of  all  the  other  legatees, 
if  necessary. "(g)  And  upon  the  other  case  of  void  legacies,  (as 
when  given  to  charities  and  payable  out  of  land,)  his  Lordship  con- 
sidered that  there  was  no  difference  between  it  and  the  former;  and 
so  he  decided  in  the  case  of  Currie  v.  Pye,(h)  which  was  to  the  fol- 
lowing effect : 

•#.  devised  her  real  and  personal  estates  to  trustees,  upon  trust 
to  sell  the  real,  and 'to  pay  her  debts  out  of  the  proceeds  from  the 
sale,  and  of  her  personal  property,  and  also  to  pay  the  annuity  therein 
given,  and  all  other  annuities- and  legacies  which  she  might  give  by 
codocil  or  memoranda  written  or  signed  by  her,  and  the  surplus  ot 
both  funds  was  to  be  applied  according  to  her  appointment  to  be 
expressed  in  a  "similar  manner.  A.  afterwards,  by  written  memo- 
randa, which  were  proved  with  the  will,  gave  several  legacies  to 
charities,  "which,  being  void,  the  question  was,  whether  the  propor- 
tion of  the  fund,  produced  by  the  real  estate  that  would-  have  been 
applied  in  payment  of  the  legacies,  to  charity,  had  they  been  valid, 
should  go  to  the  heir  or  supply  the  deficiency  of  assets  for  the  other 
legacies  ?  And  Lord  Eldon-  determined  in  favor  of  the  legatees, 
upon  the  principle,  that  A.  having  converted  all  her  real  and  per- 
sonal property  into  an  aggregate  fund  (the  whole  liable  to  every 
legacy)  had  made  the  produce  of  her  real  estate,  where  it  was  not 
well  disposed  of,  liable  to  all  legacies,  well  given;  as  by  the  general 
law,  personal  estate,  forming  an  interest  in  land,  is  liable  to  all 
legacies  except  those  given  to  a  charity. 

A  case,  may  occur  different  from  a  charge  of  particular  legacies 
upon  the  real  estate,  and  form  an  express  trust  for  its  application 
in  discharge  of  debts  and  legacies.  As  when  the  whole  real  pro- 
perty, after  being  charged  with  debts  and  legacies,  is  together  with 

(/)  See  further  on  this  subject  ante,  p.  222.  et  seq. 
(£•)  irVes.  466.  (A)  Ibid.  462.     . 

VOL.  I.  O    O 


286  General  Legacies,  [Cn.  VII. 

the  personal  estate,  devised  to  B.  and  C.  as  tenants  in  common :  if 

B.  die  before  the  testator,  half  of  the  real  fund  will  lapse  to  the  tes- 
tator's heir,  and  half  of  the  personal  residue  Will  result  to  the  testa- 
tpr's  next  of  kin.     But  in  case  of  a  deficiency  of  assets,  a  question 
arises,  how  the  real  estate  is  to  be  applied "? 

Attending  to  the  interests  of  the  heir,  and  C.  the  surviving  residua- 
ry devisee,  if  the  personal  fund  were  more  than  sufficient  to  answer 
all  the  demands ;  what  remained  of  it,  after  satisfaction  of  the  debts 
and  legacies,  would  belong  to  C.  and  the  testator's  next  of  kin,  and 
the  whole  of  the  real  estate  would  be  divisible  between  the  heir  and 

C.  But  in  the  case  supposed,  of  a  deficiency  of  the  personal  fund,  it  is 
presumed,  that  the  heir  and  C.  must  abate  pro  rata;  for  the  charge 
upon  the  real  estate  of  debts  and  legacies  being  general,  and  a  trust 
in  equity,  and  still  subsisting  notwithstanding  the  death  ofB.;  the 
heir  cannot  be  in  a  better  situation  than  B.  who  must  have  contri- 
buted with  C.  proportionally,  had  he  survived  the  testator.     B.  and 
C.  could  only  have  taken  the  surplus  of  the  real  estate,  after  the 
charges  upon  it  were  satisfied  ;  and  the  substitution  of  the  testator's 
heir  in  the  place  of  B.  cannot,  it  is  conceived,  impart  to  the  heir  any 
other  interest  or  privilege  than  what  B.  would  have  been  entitled 
to,  had  he  been  living. 

3.  We  shall  next  consider  the  claims  of  some  legatees  to  a  pre- 
ference in  payment  to  others,  so  as  to  be  exempt  from  abatement. 

The  following  appears  to  be  the  tests  by  which  all  those  claims 
are  to  be  tried  and  determined. 

FIRST.  Whether  the  legacy  be  general  or  specific,  or  in  its  nature 
specific  *?  for,  if  it  be  of  the  latter  kind,  it  is  not  liable  to  abate  with 
general  legacie's.  But, 

SECONDLY.  Suppose  it  to  be  a  general  legacy,  then  in  order  to 
ascertain  the  necessity  of  its  abating  with  other  general  legacies, 
three  points  must  be  settled : 

1.  Whether  the  legacy  be  a  mere  bounty'?     And  if  so,  then — 

2.  Whether  the  testator  has  shown  from  the  contents  of  his  will, 
a  clear  intention,  (though  not  actually  expressed  in  words)  that  the 
legacy  should  have  a  priority  of  payment  to  his  other  legacies  *?  or 
if  not —  »  , 

3.  Whether  there  be  any  valuable  consideration  for  the  testamen- 
tary gift  ? 

The  necessity  of  the  above  inquiries,  appears  from  the  conse- 
quences which  may  result  from  them ;  for  if  the  legacy  be  a  mere 
bounty,  it  must  abate  upon  a  deficiency  of  assets,  and  it  is  of  no  im- 
portance who  are  the  the  objects  or  what  are  the  purposes  to  which 
it  is  given.  But  if  the  testator  distinctly  manifest,  upon  the  face  of 
his  will,  an. intention  that  the  legacy  should  be  first  satisfied,  that 
intention  will  give  it  a  preference,  and  an  exemption  from  abating 
with  the  others.  And  so  it  will  be,  if  there  be  a  consideration  for 
the  bequest ;  for  since  the  legacy  is  founded  upon  a  basis  wholly 
different  from  voluntary  dispositions,  it  will  be  entitled  to  a  prece- 
dency in  payment  to  those  bequests,  and  consequently,  to  the  pri- 
vilege of  being  exempt  from  contribution  with  them  to  pay  debts. 
With  a  view  to  perspicuity  j  we  shall  consider  the  above  subjects 
in  their  order, 


SECT.  I.]  and  their  Abatement,  287 

FIRST.  Whether  the  legacy  be  general  or  specific,  or  in  its  na- 
ture specific,  is  a  question  of  great  nicety ;  but  as  an  attempt  has 
been  made  in  the  third  chapter,  to  show  what  bequests  are  general, 
and  what  specific,  or  in  their  nature  specific,  the  reader  is  referred 
to  that  chapter.  It  will  be  sufficient  in  this  place,  to  remind  him 
that  whether  a  legacy  be  specific,  or  in  its  nature,  only  specific,  it  will 
not  be  made  to  abate  with  general  legacies.  Supposing  then,  in 
the  SECOND  place,  that  the  legacy  is  general,  we  proceed  to  consider, 

1.  When  the  bequest  operates  as  mere  bounty. 

It  has  occurred,  that  legacies  merely  voluntary  and  general,  have 
notwithstanding  the  rule  of  abatement  prevailing  in  the  equitable 
administration  of  assets,  been  claimed  in  full,  and  the  persons  to 
whom  they  were  given,  have  resisted  a  contribution  with  other  gen- 
eral legatees  in  discharge  of  debts,  when  the  assets  were  deficient 
to  pay  them  and  the  legacies  in  toto,  upon  the  principle  either  of  a 
presumed  intention  of  the  testator  to  give  them  a  preference  of  pay- 
ment from  their  relation  to  him,  or  under  particular  circumstances 
from  which  they  considered  themselves  to  be  more  especial  objects 
of  his  favour  and  predilection  ;  or  when  a  like  inference  was  thought 
to  arise  from  the  purposes  to  which  the  legacies  were  directed  to  be 
applied.  But  it  will  appear  in  the  sequel,  that  such  legatees  have 
generally  failed  in  their  claims ;  for,  since  they  were  mere  volun- 
teers, and  the  bequests  general,  a  court  of  equity  has  said,  there 
•was  no  reason  why  they  should  be  placed  in  a  different  situation 
from  other  general  legatees. 

In  conformity  with  these  observations,  we  find,  that  servants  have 
insisted  that  general  legacies  given  to  them  ought  to  be  preferred 
to  similar  bequests  made  to  other  persons,  and  should,  therefore,  be 
privileged  from  abating  such  claims,  however,  have  not  been  attended 
with  success. 

Thus,  in  The  Attorney  General  v.  Robbins,(i)  legacies  of  51.  a 
piece  were  given  to  the  testator's  servants ;  and  although  the  exec- 
utors had  paid  them  in  full,  yet  the  assets  being  insufficient  to  an- 
swer all  demands  upon  them,  the  Master  of  the  Rolls  refused  to  in- 
fringe upon  the  rule  applying  to  abatement,  vrz.  that  these  legacies 
being  general- and  voluntary,  should  abate  with  the  other  general 
legatees  ;  and  the  Court  observed,  that  were  it  to  break  in  uppn 
the  rule  in  this  instance,  it  would  be  impossible  to  discover  the 
point  where  to  stop. 

So  also  in  Alton  v.  Medlicot^k)  General  Pepper  bequeathed  fo 
A.  140Z.  out  of  his  personal  estate  to  purchase  an  a'nnuity  for  life,  if 
she  continued  in  his  service,  with  a  direction  to  his  executor  to  ad- 
vantfe  a  further  sum  if  the  former  were  insufficient  for  the  purpose. 
Upon  a  deficiency  of  assets,  Sir  Joseph  JekylL  M.  R.  -ordered  that 
the  annuity  should  abate  upon  the  140/. 

Tha-t  the  objects  of  a  legacy,  where  it  is  general  and  voluntary, 
will  not  give  it  a  preference  to  the  .other  legacies,  appears  from  this 
circumstance  ;  that  bequests  to  charities  are  not  privileged  from 
abating  with  general  legacies.  The  civil  law  gave  a  preference  to 
pious  and  charitable  dispositions  over  all  others,  but  the  law  of  Eng- 
land has  not  adopted  that  code  in  this  instance.  It  considers  such 

(0  2  P.  Will.  25.     (£)  Cited  2  Ves.  sen.  417.  and  see  chap.  III.  sect.  4.  subdiv.  2. 


288  General  Legacies)  [Cn.  VII. 

bequests  in  the  same  view  as  others,  and  not  more  particularly  fa- 
voured than  the  rest  ;  hence,  whether  a  general  legacy  be  left  to  a 
hospital  or  to  p<?or  relations,  it  must  contribute  and  abate  with  other 
general  legacies  upon  a  deficiency  of  assets,  as  settled  by  the  au- 
thorities referred  to  in  the  note.(J). 

Executors  have  sometimes  claimed  legacies,  given  to  them,  in  full, 
as  not  falling  within  the  rule  applicable  to  abatement  on  a  deficien- 
cy of  assets,  -either  upon  a,  presumed  intention  of  testator's  to  give 
them  a  preference  in  respect  of  the  office  to  which  they  were  ap- 
pointed, or  as  a  compensation  for  their  trouble  in  executing  trusts 
of  the  will;  whence  they  insisted  an  inference  arose,  that  in  con- 
sideration of  -such  trouble  the  testators  must  have  intended  them  a 
priority  in  payment  to  other  general  legatees,  who  had  no  duty  to 
perform,  for  the  testamentary  benefits  which  they  received.  But  a 
court  of  equity  has  disregarded  such  subtle  reasoning,  and  required 
more  substantial  evidence  or  intention  in  order  to  place  legatees  in 
form  and  in  substance  general,  in  a  better  condition  than  other  gene- 
ral legatees.  Lord  Hardwicke,  in  the  case  Heron  v.  Heron,(m)  thus 
expressed  his  sentiments  upon  the  present  subject  :  "  I  am  very 
unwilling  to  distinguish  legacies  given  to  execuotrs/or  their  care  and 
pains,  from  common  legacies,  because  whether  the  words  care  and 
pains  be  expressed  in  the  will  or  not  is  a  circumstance  entirely  de- 
pending upon  the  whim  of  the  drawer.  The  legacies  are  still  be- 
quests, and  not  more  so  than  others,  so  that  there  ought  not  to  be- 
any distinction  among  them  upon  so  slight  a  ground  "  and  such  was 
his  Lordship's  decision. 

The  principle  of  the  last  case  equally  applies  to  and  requires  the 
abatement  of  general  legacies  bequeathed  to  creditors,  whose  debts 
had  been  previously  liquidated  by  composition  at  less  than  their  real 
amounts,  for  those  creditors  are  in  no  higher  a  situation  than  gene- 
ral and  voluntary  legatees. 

This  question  was  decided  in  the  case  of  Coppin  v.  Coppin,(n) 
where  A.  after  bequeathing  several  legacies,  proceeded  as  follows  : 
"  Whatever  shall  remain  in  money,  lands  and  goods  I  give  to  my  bro- 
ther B.,  who  is  to  pay  thereout  what  I  owe  to  my  creditors  at  Aleppo, 
who  have  been  so  kind  as  to  compound  my  debts  with  me  at  10s.  in 
the  pound-;  and  they  are  to  be  paid  without  interest."  .#.  then  ap- 
pointed B.  executor.  There  having  been  a  deficiency  of  assets,  the 
composition  creditors  claimed  a  preference  in  payment  of  their  lega- 
cies to  the  others,  upon  a  suggestion  that  their  demands  being  ori- 
ginally debts  which  the  testator  thought  he  was  bound  in.  conscience 
wholly  to  discharge,  they  continued  moral  obligations,  though  re- 
leased in  law,  and  were  therefore  of  a  superior  nature  to  mere  lega- 
cies, and  ought  to  be  preferred.  But  the  Court  conceived  that  the 
compounded  creditors  having  once  released  their  debts,  which  be- 
came extinct,  they  were  not  in  the  situation  of  creditors,  but  of  vo- 
luntary legatees,  and  had  no  title  to  the  legacies,  except  purely  under 
the  will  ;  and  that  it  would  be  dangerous  to  make  a  construction  be- 


s'  "("*£"'<  'Ma*ten  v.  Masters,  Alt,  Gen.  v.  Hudson,  IP.  Will.  265; 

/    %  r  A  ,    llle  Blsh°P  of  Peterborough  v.  Mortlock,  1  Bro.  C.  C.  566. 
0  iV"3     £    '  171'  and  see  Att'  Gen<  v-  Robins,  2  P.  Will.  25,     Fret-well  v.  Stacy 
2  Vern.  434.  (ra)  2  P.  Will.  292.  296. 


SECT.  I.]  .and  their  Abatement.  289 

yond  the  words  of  the  instrument,  the  effect  of  which  would  be  to 
make  a  new  will  for  the  testator. 

The  reasons  of  the  last  decision  apply  to  cases  where  a  testator 
bequeaths  money  to  pay  the  debts  of  a  relation  or  friend,  because 
there  was  no  obligation  upon  him  to  make  such  a  bequest.  The 
legacy,  therefore,  is  clearly  a  bounty,  and  to  be  considered  merely 
voluntary ;  consequently,  it  is  no  better  condition  than  other  gene- 
ral legacies,  and  must  abate  with  them  upon  a  deficiency  of  assets. (o) 

There  is  no  distinction  between  a  legatee  and  an  annuitant  in  re- 
gard to  the  general  rule  of  abatement,,  for  the  bequest  of  an  annuity 
out  of  or  charged  upon  the  general  personal  estate  is  not  specific,  as 
has  been  shown  in  the  third  chapter  of  this  Treatise,  from  the  autho- 
rities there  produced  ;  it,  therefore,  is  not  privileged  from  abating 
with  the  other  legacies.  And  since  the  mere  circumstance  of  the 
bequest  being  of  an  annuity  raises  no  inference  of  an  intention  that 
the  testator  meant  it  a  precedency  in  payment,  the  annuitant  is  even 
destitute  of  that  ground  upon  which  he  might  claim  an  exemption. 

Thus  in  Hume  v.  Edwards, (p)  it  was  a  question,  in  consequence 
of  a  deficiency  of  assets,  whether  a  devisee  for  life  of  an  annuity 
charged  upon  the  personal  estate  should  abate  in  proportion  with  the 
other  legatees'?  And  Lord Hardwicke  determined  in  the  affirmative. 

Such  being  the  rule  when  an  annuity  is -given  directly  out  of  the 
personal  estate,  because  it  amounts  to  no  more  than  a  general  be- 
quest of  so  much  money  out  of  that  fund,  as  will  yearly  produce  the 
annuity,  it  follows,  that  if  the  bequest  be  of  a  sum  of  money  to  pur- 
chase an  annuity,  or  to  lay  out  in  buying  land,  or  to  invest  upon  go- 
vernment securities  for  the  benefit  of  the  legatee,  either  in  paying 
to  him  the  rents  and  interest,  or  otherwise  to  dispose  of  the  subjects 
according  to  his  appointment,  or  to  transfer  them  to  him  at  a  parti- 
cular time ;  in  each  of  those  cases,  if  there  be  a  failure  of  assets, 
those  sums  must  abate;  since  they  are  no  more  than  voluntary  dis- 
positions, and  fall  within  the  class -of  general  legacies. 

Accordingly  in  Hinton  v.  Pinke,(q)  «/2.,  among  other  legacies,  gave 
1500L  to  B,  her  eldest  son,  in  trust  to  lay  it  out  in  the  purchase  of 
lands  of  inheritance,  and  to  grant  a  rent-charge  of  50Z.  a  year  out  of 
it  to  her  daughter  C,  for  her  separate  use ;  but  if  B.  refused  to  make 
the  purchase  and  grant  the  rent-charge,  he  was  to  have  500Z.  only  of 
the  money,  and  the  remainder,(10Co/,} 'was  to  be  laid  out  in  buying 
an  annuity  for  C.'s  separate  use.  There  being  a  deficiency  of 
assets,  the  question  was,  whether  the  legacy  of  1500Z.,  or  at  least 
the  50Z.  annuity  should  abate  with  the  general  legacies?  And  it  was 
objected  against  any  abatement  that  the  legacy  was  to.  be  consider- 
ed as  a  devise  of  land,  and  therefore  .specific.  To  which  it  was  an- 
swered, that  the  bequest  was  of  money  only,  and  liable  consequently 
to  abate  with  other' general  legacies.  And  of  that  opinion  was  Lord 
Parker,  C.  since  the  money  was  not  given  in  the  form  of  a  specific 
legacy;  his  Lordship  observed,  that  from  the  provision  in  the  will 
for  the  son's  refusal  or  neglect  to  make  the  purchase  and  grant,  he 
considered  the  daughter  to  be  a  legatee  for  1000Z.  which  must  abate, 

(o)  See  Shirt  v.  Westby,  16  Ves,  393,  396. 

(ft)  3  Atk.  693.  (g)  1  P.  Will.' 539. 


290  General  Legacies,  [Cn.  VII. 

and  the  residue  be  laid  out  in  the  purchase  of  annuity  for  her. 
Again — 

In  Lawson  v.  Stitcher)  the  bequest  was  of  500/.  ioA.  to  continue 
at  interest  upon  such  securities  as  the  testator  left 'at  his  death,  or  to 
be  invested  on  government  securities  at  the  election  of  his  executors. 
The  assets  proving  deficient  to  pay  all  the  legacies,  Lord  Hardwicke 
determined  that  the  legacy  was  general,  and  liable  to  abate  in  pro- 
portion with  the  other  legatees. 

The  cases  which  have  been  cited,  show  that  when  the  bequest  is 
made  in  the  form  of  a  general  legacy  and  is  pure  bounty,  and  there 
are  no  expressions  in,  or  inference  to  be  drawn  from  the  will,  mani- 
festing an  intent  to  give  it  a  priority,  the  objects  or  purposes  to  which 
the  legacy  is  to  be  applied  will  not  exempt  it  from  abatement ;  for 
a  court  of  equity  will  not  speculate  upon  what  a  testator  might  mean, 
as  to  preferring  a  legacy  on  account  of  the  object  or  purpose  to 
which  it  was  given,  when  in  form  it  is  merely  general;  since,  if  the 
Court  were  to  do  so,  it  might  not  only,  be  making  a  new  will  for  the 
testator,  but  be  opening  widely  its  doors  to  litigants,  and  the  line 
could  not  be  easily  drawn  at  which  the  Court  might  say,  "  hitherto 
and  no  farther  shall  the  rule  of  abatement  be  broken  in  upon."  It 
may,  therefore,  be  concluded,  that  general  and  voluntary  bequests 
for  the  maintenance,  or 'for  the  advancement  in  the  world  of  the  le- 
gatees, or  for  any  other  purposes  of  bounty,  must  abate  with  other 
general  legacies. 

In  addition  to  the  cases  before  produced,  may  be  cited  the  au- 
thority of  Jlpreece  v.  *flpreece,(s)  in  support  of  the  above  remarks.  In 
that  case  general  legacies  were  left  for  the  purchase  of  mourning 
rings;  and  although  a  priority  of  payment  was  insisted  upon  by  the 
legatees,  a  claim  which,  if  allowed,  would  have  privileged  them  from 
abating,  with  the  others,  yet  it  was  determined  that  these  bequests 
(being  general)  should  contribute  with  others  of  a  similar  denomi- 
nation. 

The  last  case  seems  to  be  a  further  authority,  that  legacies  given 
for  mourning  are  within  the  rule  applicable  to  abatement. 

If  a  general  legacy  for  mourning  or  to  purchase  mourning  rings 
be  under  the  necessity  of  abating,  being  considered  as  no  other  then 
a  general  legacy,  it  Should  seem  that  a  similar  form  of  bequest  for 
building  a  monument  to  the  memory  of  a  relation  would  not  be 
placed  in  a  better  situation.  But  in  Masters  v.  Masters,(t}  Lord 
Parker,  C.  exempted  such  a  legacy  from  abating  with  the  general 
legacies.  The  monument  was  for  the  testatrix's  mother,  and  the 
amount  of  the  legacy  was  200/.  The  bequest  was  insisted  to  be  a 
debt  of  piety  to  the  mother's  memory,  and  therefore  entitled  to  a 
preference  to  other  general  legacies,  'yet  how  to  distinguish  this  debt 
of  piety  from  a  debt  of  charity,  or  a  debt  of  friendship  or  remem- 
brance, is  not  an  easy  task,  a  circumstance  which  proves  the  wisdom 
of  the  rule  acted  upon  by  a  court  of  equity  in  requiring  express  dec- 
laration of  priority  to  a  legatee,  or  clear  intention  to  give  it,  appear- 
ing from  the  context  of  the  will,  in  order  to  exempt  such  legatee 
from  abating  with  the  others.  Lord  Parker's  decision  may,  there- 

(r)  1  Atk,  507.  and  see  Gibbons  \.  Hills,  1  Dick.  3^4.  5.  P.  and  stated  ante, 
P-  156.  («)  1  Yes.  &  Bea.  364.  (*)  1  P.  Will.  423. 


SECT.  I.]  and  their  .Abatement.  291 

fore,  be  reasonably  questioned.  And  if  a  monument  had  been  erect- 
ed to  the  mother's  memory,  and  the  testatrix  had  left  the  money  to 
ornament  or  to  keep  it  in  repair,  the  legacy  must  have  abated  upon 
the  authority  of  Blackshaw  v.  Rogers.  (u)  It  is  difficult  to  support 
Lord  Parker's  decree  on  the  basis  of  a  debt  of  piety,  since  that  con- 
sideration may  be  applied  to  each  case  ;  and  then  his  Lordship's 
opinion  is  over-ruled  by  Lord  Thurlow  in  the  authority  last  referred 
to.  Upon  the  whole,  it  is  presumed,  that  a  general  legacy  to  erect 
a  monument  for  a  parent,  child,  or  friend,  would  not  now  be  except- 
ed  out  of  the  general  rule  of  abatement. 

It  appears  from  the  preceding  cases  and  observations,  that  a  court 
of  equity  will  not  make  a  difference  among  general  legatees,  and 
exempt  some  of  them  from  the  operation  of  the  rule  of  abatement, 
upon  slight  inferences  or  conjectures  that  the  testator  intended  to 
give  their  legacies  a  priority  of  payment,  when  such  intention  can 
alone  be  inferred  from  the  relation  of  the  legatees  to  him,  or  from  the 
purposes  to  which  the  bequests  are  applicable.  But  it  may  be  pro- 
per to  consider  more  particularly  whether  the  relationship  of  husband 
and  wife,  or  parent  and  child,  entitles  those  sustaining  such  intimate 
relationships  to  a  preference  in  payment  of  their  general  legacies, 
over  other  general  legatees.  They  have  claimed  such  a  priority  up- 
on the  basis  of  intention,  presumed  from  the  close  connection  sub- 
sisting betwe.en  them  and  the  testator.  In  the  case  of  Lewin  v. 
Lewin,(x)  though  not  a  decision  that  a  wife  or  child  is  in  general 
entitled  to  such  preference  in  payment,  yet  Lord  Hardwicke  express- 
ed himself  in  terms,  which  could  not  be  otherwise  understood  than 
as  his  sentiments  in  favour  of  the  general  right.  Nevertheless,  within 
ten  days  afterwards,  his  Lordship  in  a  case  of  Blower  v.  Morret,(y) 
seems  to  have  changed  his  opinion  in  declaring,  that  a  claim  of  a 
general  legatee  (a  wife  in  that  instance)  to  a  priority  of  payment  to 
other  general  legatees,  must  be  founded  upon  very  strong  expres- 
sions in  the  will  ;(z)  thus  intimating  that  inferences  of  intention 
drawn  from  circumstances,  such  as  the  relation  of  parent  and  child, 
or  husband  and.  wife,  are  not  of  themselves  sufficient  to  form  those 
cases  into  exceptions  to  the  rule  observed  in  regard  to  abatement  in 
the  administration  of  assets  ;  exceptions  which  the  Court  has  seldom 
allowed.  It  cannot  be  denied  that  on  first  impression,  it  appears  to 
be  a  natural  inference,  that  a  husband  or  parent  should  intend  to  give  a 
preference  in  payment  to  a  general  legacy  bequeathed  to  his  wife  or 
child,  upon  which  intent  alone  it  must  be  that  such,  priority  can  be 
claimed.  Yet  upon  reflection,  the  impression  and  inference[first  made 
lose  much  of  their  weight,  when  it  is  considered  that  the  -testator  has 
not  expressly  declared  that  priority,  but  given  the  legacy  in  the  same 
form  of  generality  as  his  other  legacies  ;  and  further,  that  it  is  not 
only  possible,  but  probable,  that  so  far  from  meaning  any  preference 
in  payment  to  any  of  them,  he  intended  and  thought  that  all  the  lega- 
cies he  had  bequeathed  would  be  fully  satisfied  ;  indeed  the  very 
bequests  are  evidence  of  his  conception  and  belief  that  his  personal 
estate  was  sufficient  to  answer  all  his  testamentary  dispositions.  (a) 
The  testator's  intention,  therefore,  to  prefer  the  legacy  to  his  wife 


(«) 
(y) 


Cited  4  Bro.  C.  C.  349.  and  stated  infra.        (.r)  2  Ves.  sen.  416. 
Ibid.  420.  (z)  Ibid.  421.  (a)  4  Mad.  168. 


292  General  Legacies,  [Cn.  VII. 

or  child  (that  intent  being  the  very  foundation  upon  which  the  claim 
rests)  seems  to  be  even  below  doubt ;  for  it  is  probable  there  was  a 
total  absence  of  intenton  upon  the  subject. 

On  the  whole,  it  would  seem  that  when  a  legacy  to  a  wife  or  child 
is  general,  the  rule  of  abatement  applicable  to  other  general  lega- 
cies equally  applies  to  it,  and  can  only  be  evaded  by  strong  expres- 
sions in  the  will,  or  manifest  intention  collected  from  its  contents  ; 
so  that  if  there  be  neither  expressions  in  the  instrument,  nor  inten- 
tion apparent  upon  the  face  of  it,  that  such  legacy  should  have  pre- 
cedence, it  must  abate  with  the  general  legacies,  with  regard  to  the 
circumstance  whether  the  wife  or  child  have  any  other  provision  or 
not.  The  principle  is,  that  the  legacy  being  general  like  the  rest, 
there  is  no  solid  reason  in  the  absence  of  declaration,  or  intention 
appearing  upon  the  will,  why  that  legacy  should  not  be  exposed  to 
the  same  disadvantage  as  the  other  legacies. (6) 

But  since  a  testator  may  by  express  declarations,  or  clear  intention, 
shown  in  his  will,  prefer  one  class  of  general  legatees  to  another,  so 
as  to  exempt  the  bequests,  falling  within  that  class,  from  abating 
with  the  rest,  we  shall  proceed  to  consider — 

2.  What  will  and  what  will  not  be  sufficient  expression,  and 
what  sufficient  evidence  (in  the  absence  of  express  declaration)  of 
the  testator's  intention  to  prefer  in  payment  one  legacy  to  another. 

It  is  but  seldom  that  claims  by  general  legatees  of  a  priority  of 
satisfaction,  so  as  not  to  abate  proportionally  with  others,  have  been 
brought  before  a  court  of  equity.  There  are  not,  therefore,  many 
cases  upon  the  subject;  yet 'from  the  authorities  which  have  been 
and  will  be  produced,  it  appears  how  rarely  the  Court  has  acceded 
to  those  demands,  and  for  the  reason  before  stated,  viz.  that  if  it 
were  upon  slight  grounds  or  conjecture  to  give  a  preference  to  a 
general  legatee,  there  would  be  no  end  to  applications  upon  the 
subject.  The  Court,  therefore  (when  the  testator's  express  decla- 
rations are  relied  on)  requires  them  to  be  clear  and  explicit,  in  order 
to  give  any  individual  general  legacy  a  preference  over  other  general 
bequests. 

Thus  in  Marsh  v.  Evans, (c)  there  were  words  declaratory  of  a 
preference  in  payment  of  a  legacy  given  to  a  daughter.  The  only 
question  was  upon  the  construction  of  the  words  in  reference  to  the 
event  which  had  occasioned  a  necessity  for  abatement  by  the  lega- 
tees. The  case  was  to  the  following  effect :  Jl.  bequeathed  2000Z. 
a  piece  to  his  two  sons,  and  2000Z.  to  his  daughter,  payable  at  twenty- 
one  or  marriage  ;  with  a  proviso,  that  if  the  assets  should  fall  short 
for  the  satisfaction  of  those  legacies,  his  daughter  should  notwith- 
standing, be  paid  her  full  legacy,  and  the  abatement  be  borne  pro- 
portionally by  the  legacies  of  the  sons  only.  The  testator  left  suf- 
ficient property  to  discharge  all  the  legacies,  but  the  widow  and 
executrix  wasted  the  assets,  which  was  the  sole  cause  of  the  de- 
ficiency. And  Lord  Parker,  C.  on  appeal  from  a  decere  at  the 
Rolls,  determined  in  reversal  of  that  decree,  that  according  to  the 
words  and  meaning  of  the  will,  the.  daughter  should  have  her  full 
portion,  and  the  abatement  be  only  made  out  of  the  legacies  to  the 

(b)  See  Lord  Hardwicke's  judgment  in  Blower  v.  Morret,  2  Ves,  421. 

(c)  1  P.  Will.  668.  (rf)  i  p.  Will.  669. 


SECT.  I.]  and'their  Abatement.  293 

sons ;  and  for  these  reasons,  viz.  that  there  was  a  plain  preference 
given  to  the'  portion  of  the  daughter  before  those  of  the  sons,  and 
that  the  event  which  had  happened  was  within  the  words  of  the  pro- 
viso, the  estate  having  actually  fallen  short  to. pay  the  legacies;  also 
since  the  testator  had  not  restrained  the  expressions  to  any  par- 
ticular means  by  which  the  assets  should  fall  short,  the  construction 
of  them  was  to  be  general,  i.  e.  if  by  any  means  there  should  be  a 
deficiency,  because  the  injury  was  the  same  to  the  -daughter,  whom 
the  father  seemed  in  all  events  to  have  provided  for  with  a  portion  of 
2000;. 

It  seems  to  follow  from  those  reasons,  that  if -the  assets  had  be- 
come deficient  after  the  testator's  death,  by  losses  from  fire,  or  by  a 
defect  of  title  to  a  security,  upon  which  part  of  the  estate  had  been 
lent  (events  which  could  not  have  been  foreseen  by  the  testator) 
those  accidents  would  have  been  included  within  the  provision  of  the 
will,  and  the  daughter  entitled  to  her  full  portion. (d) 

If,  however,  the  expressions  be  ambiguous,  and  do  not  mark  with 
certainty  the  testator's  intention  to  give  a  priority  to  a  legatee,  the 
rule  of  abatement  is  so  much  regarded,  that  the  Court  will  not  per- 
mit it  to-be  infringed  by  such  an  uncertainty. 

Suppose,  then,  a  testator  give  to  his  wife  a  general  legacy  of  500/. 
with  a  direction  to  pay  it  immediately  after  his  death,  out  of  the  first 
monies  that  should  be  received  by  his  executors ;  neither  the  order 
for  payment  of  the  legacy,  immediately  after  the  testator's  decease, 
nor  the  direction  of  its  satisfaction  out  of  the  first  monies  which 
should-come  to  the  hands  of  his  executors,  would  be  a  sufficiently 
clear  manifestation  of  his  intention,  that  he  meant  to  give  this  lega- 
cy a  precedency  in  payment  to  his  other  bequests ;  and  for  these 
reasons  :  the  testator,  in  directing  the  legacy  to  be  paid  immediate- 
ly after  his  death,  might  merely  intend  to  anticipate  the  legal  period 
of  payment,  which  is  at  the  expiration  of  one  year  after  his  decease, 
and  not  to  give  the  legacy  a  priority  to  his"  other  general  legacies  ; 
and  then  the  proviso  for  payment  of  it'  out  of  the  first  money  to  be 
received  after  his  death,  is  consequential  to  that  preceding  direction, 
and  of  no  operation.  Hence  it  appears,  that  the' testator  has  not  so 
clearly  expressed  his  intention  to  give  a  preference  to  the  legacy,  as, 
in  this  instance,  to  authorize  a  court  of  equity  to  relax  its  rule  of 
abating,  founded  upon  the  justice  of  an  equal  contribution,  by  all 
the  general  legatees. (e) 

And  for  the  reason  last  mentioned,  if  a  legacy  be  given  to  Jl.  pay- 
able one  month  after  the  testator's  death,  a  second  legacy  to  B.  six 
months  after  the  testator's  death,  arid  a  third  legacy  to  C.  payable 
twelve  months  after  the' testator's  decease,  the  difference  in  times  of 
payment  will  not  impart  to  any  of  the  legatees  such  a  preference  as 
to  exempt  them  from  abating  upon  a  deficiency  of  assets  ;  because 
the  preference  being  confined  to  payment  only,  is  consistent  with 
the  intent  imputable  to  all  testators,  that  their  several  dispositions 
should  be  wholly  satisfied,  upon  which  presumed,  intention  it  is,  that 
the  rule  of  contribution  is  founded.  The  intent,  then,  in  the  pre- 
sent case,  to  exempt  any  of  the  legacies  from  the  operation  of  that 

(rf)  IP!  Will.  669,  (*)  Blower  v..Morret,  2  Ves.  sen.  420.' 

VOL.  I.  P 


294  General  Legacies,  [Cn.  VII. 

rule,  merely  upon  the  ground  of  the  different  periods  appointed  for 
their  payment,  is,  at  the  utmost,  conjectural  and  ambiguous,  and 
consequently  insufficient  to  impart  that  privilege^/) 

So  also,  if  a  testator  expressed  himself  in  the  following  manner : 
"  Imprimus,"  or  "  in  the  first  place. "(g)  I  give  such  a  legacy  to  Jl. 
and  "in  the  next  place,"  or  "-afterwards,"  I  give  such  a  sum  of 
money  to  B.;  these  words  or.  variety  of  expression  (considering  the 
inattention  and  incorrectness  with  which  wills  are  frequently  drawn, 
as  also  the  little  regard  paid  to  nicety  of  expression)  will  neither  give' 
A.  a  preference  to  13.  nor  either  of  them  a  priority  to  other  general 
legatees,  so  as  to  exempt  them  from  the  obligation  of  abating  with 
such  other  legatees.  The  reason  is,  that  the  words  merely  point  out 
the  order  in  which  the  bequests  are  made  in  succession,  and  do  not 
impart  with  certainty  an  intention  to  prefer  one  to  another.  The 
expressions  before  noticed  are  not  necessarily  inconsistent  with  the 
application  of  the  general  rule  of  abatement  which  is  founded  upon 
equality,  but  they  may  be  satisfied  with  a  construction  compatible 
with  the  admission  of  that  rule.  The  possible  intent  of  the  testator 
to  give  a  preference  by  the  language-he  adopted,  is  judicially  insuf- 
ficient to  accomplish  a  purpose  so  obscurely  or  doubtfully  intimated. 

All  the  above  expressions  occurred  in  the  recent  case  of  Beeston 
v.  Both,(h)  in  which  the  testator  gave  his  personal  estate  to  execu- 
tors, in  the  first  place,  to  pay  debts,  funeral  and  testamentary  expen- 
ses; and  in  the  next  place,  three  legacies  to  B.,  C.  and  D.  with 
legal  interest  from  three  months  after  his  death,  and  afterwards  to 
raise  and  set  apart  three  sums  of  money  to  be  applied  as  therein  men- 
tioned. Upon  a  question  of  abatement,  the  Court  declared,  upon  the 
principle  before  stated,  that  none  of  the  legacies  were  entitled  to  a 
priority  of  payment,  and  therefore  that  all  of  them  must  abate  pro- 
portionally, according  to  the  general  rule. 

Having  considered  certain  expressions  as  not  sufficiently  indicat- 
ing a  testator's  intention  to  exempt  one  general  legatee  from  abate- 
ment in  preference  to  another,  we  shall  next  produce  some  instances 
where  the  contents  of  the  will  were  held  to- afford  the  requisite* evi- 
dence of  that  intention. 

.  Since  every  testator  is  presumed  to  mean,  that  all  the  legacies  given 
by  him  shall  be  paid^  it  follows  that  if  there  be  a  deficiency  of 
assets  to  fulfil  the  intent,  it  is  only  equitable  that  all  of  them  should 
bear  the  loss  in  proportion  to  their  bequests  ;  and  such  is  the  rule  as 
before  stated.  To  form  exceptions  to  a  rule  so  founded,  the  testa- 
tor's intention  as  collected  from  his  will,  in  the  absence  of  appropri- 
ate expression  must  be  clear,  as.  appears  from  the  cases  before  men- 
tioned and  referred  to.  An  instance  of  the  manifestation  of  such 
an  intention  may  be,  where  a  testator,  in  disposing  of  his  personal 
estate,  constitutes  two  residues,  and  computes  the  first  after  taking 
out  of  it  one  or  more  legacies,  and  computes  the  second,  after  de- 
ducting other  legacies.  In  such  a  case,  it  has  been  determined,  that 
the  intention  was  sufficiently  apparent  to  give  the  first  set  of  lega- 

(/)  2  Ves.  sen.  421.     4  Mad.  168. 

(g)  Brown  v.  Allen,  1  Vern,  31.  Lewin  v.  Lnmn,  2  Ves.  sen.  417.  and  Blower 
v.  Morret,  ibid.  42L  (h)  4  Mad.  161. 


SECT.  I.]  and  their  Jldemption.  295 

tees  a  preference  in  payment  to  the  second,  so  as  to  privilege  the 
former  from  abating  with  the  latter. 

The  case  of  Lewin  v.  Lewin,(i)  will  prove  and  illustrate  the  above 
remarks.  A.  having  a  wife  and  two  children,  bequeathed  to  her  for 
life  an  annuity  of  120Z.  subject  to  limitations  over,  if  he  had  a  son, 
&c.  And  he  afterwards  directed  his  executors  to  buy,  if  they  could, 
the  annuity  in  government  securities  of  ninety-nine  years,  or  some 
other  long  term,  but  if  they  were  unable  to  do  so,  then  to  purchase 
lands  of  the  annual  value  of  2001.  to  be  so  settled  that  the  annuity 
should  be  to  his  wife,  free  from  taxes,  with  remainders  over.  A. 
also  directed  that' if  he  left  any  child,  his  executors  should  out  of  the 
profits  of  his  residuary  estate  pay  to  his  wife  30Z.  a  year  for  the  main- 
tenance of  such  child.  He  then  gave  legacies  to  some  collatral  re- 
lations and  friends,  and  ordered  all  the  residue  of  his  real  and  person- 
al estates  to  be  placed  out  for  the  benefit  of  his  -children,  and  to  be 
paid  to  them  at  their  respective  ages  of  twenty-one  or  marriage. 
There  being  a  deficiency  of  assets,  the  'question  was,  whether  the 
\uife's  annuity  of  1201.  should  abate  with  the  other  general  legacies  1 
And  Lord  Hardwicke  determined  in  the  negative,  expressly  stating 
in  the  subsequent  case  of  Blower  v.  Morret,(k]  the  governing  reason 
for  his  decree  in  the  present,  to  be  "  that  the  testator  had  consti- 
tuted two  residues  of  his  estate  j".  and  his  Lordship  observed  in  his 
judgment  in  Lewin  v.  Lewin,(l)  that  it  would  be  an  unreasonable 
construction,  and  contrary  to  the  intent  to  presume  the  testator 
meant  the  whole  maintenance  for  his  children  should  depend  upon 
the  contingency,  whether  there  would  be  any  surplus  after  the  pur- 
chase^of  the  annuity,  (the  whole  of  which  was  to  go  to  the  wife  for 
life),  and  after  all  the  general  legacies  that  he  had  given  to  colla- 
teral relations  and  friends. 

That  the  last  observations,  connected  with  the  manner  in  which 
the  two  sets  of  legacies  are  bequeathed,  afford  additional  corrobo- 
rative evidence  of  the  testator's  intention  to  give  a  preference  of 
payment  to  the  first  class  is  obvious.  But  had  the  annuity  been  be- 
queathed and  classed  with  the  other  legacies  without  any  mark  of 
discrimination,  then  it  should  seem,  for  the  reason,  detailed  in  a 
preceding  page,(m)  that  although  its  object  were  a  provision  for  a 
wife,  it  would  not  have  been  exempted  from  abatement  with  the 
other  general  legacies. 

Another  instance  of  intention  sufficiently  manifest  to  prefer  one 
class  of  legatees  to  another  may  be,  when  a  testator,  after  bequeath- 
ing several  legacies,  states  his  supposition  of  there  being  still  a  re- 
sidue of  his  estate,  and. then  proceeds  upon  that  idea  to  give  more 
legacies  either  in  his  will  or  by  a  codicil ;  in  such  a  case  if  the 
assets  be  deficient  to  satisfy  all  the  bequests  the  second  set  of 
legatees  alone  must  contribute 'to  supply  the  deficiency,  for  they 
are  not  entitled  to  call  upon  the  others  to  join  in  the  abatement,  and 
upon  the  principle  of  the  testator's  intent  being  clear  to  give  the 
second  class  of  legacies  only  if  there  remained  a  sufficient  fund  for 
their  payment,  after  satisfaction  of  those  first  bequeathed. 

A  question  of  this  kind  occurred  in  the  Attorney   General  v. 

(0  2  Ves.  sen.  415.  (fc)  2  Ves.  sen.  421.  (/)  Ibid.  417. 

(w)  Ante,  p.  291. 


296  Ueneral  Legacies,  [On.  VII 

Robins, (n)  in  which  tho  testator  after  giving  several  legacies  men- 
tioned towards  the  conclusion  of  his  will,  that  he  apprehended 
there  would  be  a  considerable  surplus  of  his  personal  estate  beyond 
what  he  had  before  disposed  of  in  legacies ;  for.  which  reason  he 
gave  several  others. .  After  this  he  gave  further  legacies  in  a  codicil 
amounting  to  160J.  which,  upon  a  deficiency  of  assets  as  the  event 
happened,  were  to  be  paid  out  of  200Z.  given  by  the  will  to  chari- 
table purposes.  The  Master  oftJie  Rolls  determined  that  the  lega- 
cies given  at  the  latter  end  of  the  will  being  upon  a  presumption 
that  there  wo.uld  be  a  surplus,  but  founded  in  a  mistake,  should  be 
postponed  to  those  previously  bequeathed..  And  in  regard  to  the 
legacies  in  the  codicil,  the  Court  observed,  that  as  a  codicil  is  part 
of  the  will,  bequests  in  both  should  proportionally  abate ;  but  that 
in  the  present  case,  when  the.  testator  in  the'  latter  part  of  his  will 
said,  that,  since  he  apprehended  there  Would  be  a  considerable  sur- 
plus, he  gave  additional  legacies,  the-same  apprehension  must  be 
intended  to  continue  when  he  made  the  codicil;  and  the  legacies  in 
it  should  take  place  only  out  of  the  supposed  surplus,  .were  it  not 
for  the  latter  part  of  the  codicil  in  the  present  case,  directing,  in 
case  of  a  deficiency  of  assets,  the  legacies  it  contained  should  be 
paid  out  of.  the  200/L  given  by  the  will  for  charitable  purposes,  a 
legacy  which,  in  the  event  that  happened,  could  not  take  effect  to 
its  full  extent.  Hence  it  appeared  tha't  by  the  reference  to  the  will, 
and  a  substitution  of  the  legacies  in  the  codicil  for  part  of  one  in 
the  first  class  bequeathed  by  such  will,  in  the  event  of  a  want  of 
assets  to  pay  in  full  the  benefits  given  by  the  codicir,  .the- testator's 
meaning  was  sufficiently  evinced,  that  both  these  sets  of  legacies, 
viz.  those  of  the  first  class  in  the  will,  and  those  in  the  codicil 
should  be  equally  paid ;  and,  consequently,  that  all  of  them  should 
abate  in  proportion.  Again — 

In  the  case  of  Beeston  v.  Booth,(o)-  the  testator,  after  giving  two 
sets  of  legacies,  directed  th'at  after  payment  of  those  bequests  and 
of  his  debts,  his  executors  and  trustees  .should  be  possessed  of  his 
residuary  estate,  if  not  exceeding  100QZ.  intrust  for  B.;  but  if  it 
were  more,  and  not  beyond.  1500Z.,  in  trust  for  B.  and  C.;  and  that 
if  such  residue  exceeded  1500Z.,  then  in  trust  to  pay  the  further 
legacies  therein  given  (specifying  their  amounts) ;  and  the  surplus, 
if  any,  to  D.,  with  a  direction,  that  if  the  residue  were  insufficient 
to  pay  those  legacies,  the  persons  to  whom  they  were  bequeathed 
should  proportionally  abate.  Upon  a.  considerable  deficiency  of 
assets,  one  of  the  questions  was,  whether  the  abatement  should  be 
general,  as  well  by. the  two  sets  of  legacies  given  before  the  dispo- 
sition of  the  residue,  as  by  the 'third  set  bequeathed  in  distributing 
such  estate1?  And  the  Court  determined  that  the  two  first  classes 
of  legatees  were  entitled  to  a  preference  of  payment  to  the  third 
class;  and  consequently,  that  the  latter  could  claim  nothing,  unless 
there  remained  a  surplus  after  fully  satisfying  the  testator's  debts, 
and  the  two  first  sets  of  legacies;  as  the  intention  was  clear,  that 
the  third  class  was  to  be  -payable  only  in  the  event  of  there  being  a 
surplus,  as  before  described. 

The  last  point  to  be  considered,  in  determining  whether  a  general 
(»)  2  P.  Will.  23.  (0)  4  Mad.  162.  170, 


SECT..  L]  .  and  their  Abatement.  297 

legacy  is  entitled  to  a  preference  in  payment,  so  as  to  be  privileged 
from  abating  with  other  legatees  as  previously  observed, (/>)^-is, 

3.  Whether  there  be  any  valuable  consideration  for  the  tes- 
tamentary gift. 

'  When  a  general  legacy  is  given  in  consideration  of  a  debt  owing 
to  the  legatee,  or  of  his  relinquishing  any  right  or  interest,  since  the 
bequest  is  not  made  as  a  bounty',  like  other  general  bequests,  but  as 
purchase  money  for  the-  collateral  right  or  interest,  it  will  be  entitled 
to  a  preference  of  payment  to  the  other  general  legacies,  which  are 
merely  voluntary. 

Suppose,  then,  a  sum  of  money  to  be  bequeathed  to  B.  in  the 
event  of  his  conveying  a  particular  estate  to  C.'f  B.  has  an  option  of 
acceding  to  the  terms,  and  if  he  do  so,  the  transaction  amounts  to  a 
contract  for  a  valuable  consideration,  and 'the  legatee  will  not  be 
under  the  necessity  of  abating  proportionally  with  other  general  le- 
gatees, (q)  The  law  is  the  same  when  a  general  bequest  is  made  by 
the  testator  to  his  wife  in  lieu  of  dower;  for  her  election  to  accept 
the  legacy  places  her  in  the  situation  of  a  purchaser  of  what  is  given 
her  by  the  will. 

The  case  of  Burridge  v.  Brttdyl(r]  was.  decided  upon,  the  above 
principle. (s)  There,  amongst  other  legacies,  the  husband  bequeath- 
ed 3400JL  to  his  executors  to  purchase  exchequer  bills  for  ninety- 
nine  years,  to  be  enjoyed  by  his  wife  for  kfe,  "  she  releasing  her 
dower."  Lord  Cowper  said,  that  the  3400L  should  be  preferred  to 
the  other  legacies,  which  must  be  lost  if  the  assets  were  insufficient 
to  pay  them. 

So  in  Blower  v.  Morret,(f)  the  husband  made  some  testamentary 
gifts  to  his  wife  and  other  persons,  and  after  giving  a  general  legacy 
of  500/.  to 'her,  declared  that  the  bequests  made  in  her  favour  were 
in  lieu  and  satisfaction  of  all  dower  and  thirds,  to  which  she  might 
be  entitled  at  law  out  of  his  real  and  personal  estates.  Lord  Hard- 
wicke  declared,  that  the  wife's  abandonment  of  her  legal  rights 
would  entitle  her  to  payment  of  the  whole  of  the  benefits  which  were 
given  to  her  under  the  will,  in  preference  to  other  general  legatees. 

It  must  be  remarked,  that  as  it  is  the-  surrender  of  existing  rights 
or  claims,  which  gives  the  preference  to  the  legatee,  it  is  necessary 
that  those  rights  or  claims  should'be  subsisting  at  the  testator's  death; 
for  example,  suppose  a  wife,  were  barred  of  dower  and  thirds  by  a 
jointure.  Lord  Hardwicke  said,  he  would  not  consider  the  wife  to  be 
a  purchaser  of  the  testamentary  provisions,  but  that  the  words  re- 
quiring a  release  of  such  rights  wer-e  only  of  course,  and 'amounted 
to  nothing.(w) 

If,-however,  the  wife  be  entitled  to  dower  and  thirds,  and  a  legacy 
be  given  to  her  in  satisfaction  of  them,  it  will'  not  be  excluded  from 
a  preference  in  payment  to  other  legacies,  if  the  amount  of  the  be- 
quest happen  to  exceed  the  value  of  those  rights;  for  the  testator  is 
the  only  and  best  judge  of  the  price  at  which  he  is  desirous  to  be- 
come the  purchaser  of  them. 

Accordingly  inDavinhill  v.  Fletcher, '(x)JL.  bequeathed  an  annuity 

(/O  Ante,  p.  286.  (?)  2  Ves.  sen.  422.  (r)  1  P.  Will.  127. 

(s)  2  Ves.  sen.  422.         m  2  Ves.  sen.  420.  (u)  Ibid.  422, 

(.r)  Ambl,  244.  and  see  2  Ves.  sen.  422.    Heath  v.  Dendy,  1  Russ.  543. 


298  General  Legacies,'  •   [Cn.  VII. 

to  his  wife  for  life,  to  be  paid  out  of  a  freehold  estate;  also  the  use 
of  his  house,  with  the  furniture  and  linen.  He  further  gave  to  her  5001., 
which,  with  the  annuity,  he  declared  to  be  "  in  full  of  what  she 
should  or  might  claim  for  dovyer  and  thirds  out  of  his  real  or  perso- 
nal estate."  There  was  a  deficiency  of  assets  to  pay  debts  and  lega- 
cies, and  the  question  was, -whether  the  500Z.  should  abate  with  the 
other  legacies.  For  the  abatement  two  arguments  were  used': — 1st, 
that  the  words,  m  full  of  dower,  &c.  were  not  inserted  to  give  the 
wife  an  advantage,  but  merely  to  signify  that  she  should  not  have 
both  dower  and  the  legacies,  and  tha't  since  the  500JL  would  abate 
without  those  expressions,  so  ought  that  sum  to  do  with  them : — 2dly, 
that  the  legacies  exceeded  the  wife's  dower,  and  therefore  the  500L 
ought  to  abate.  To  these  arguments  Sir.  Thomas  Clarke,  M.  R.  an- 
swered, that  although  there  was  weight  in  the. observations,  which 
would  deserve  consideration, .if  the  point  were-?*€S  integris;  yet,  as 
the  law  had  been  settled  to  the  contrary  by  the  two- cases  of  Bur- 
ridge  v.  Bradyl,  and  ftlower  v.  Moi'ret,(y]  his  Honour  declared,  that 
the  wife  was  entitled  to  the -legacy  without  abatement. 

We  now  come  to  the  last  subject  proposed  for  consideration  in 
this  section,  namely, — 

4.  The  abatement  of  general  legacies  .of  stock. 

In  cases  where  stock  is  bequeathed  as  a  general  legacy,  and  the 
legatee  is  called  upon  to  abate  with  other  general  legatees,  the  abate- 
ment will  be  regufated  by  the  value  of  stock  at  the  end  of  one  year 
next  after  the  testator's  death.  .  An  instance  of  this  occurred  in — 

Blackshaw  v..  Rogers(z]  in  which  a  testator  ga\;e  2001.  consols  to 
B.  to  keep  a  monument  in  repair;  and,  by  a  codicil,  he  gave  the  in- 
terest of  300Z.  to  C.  for  life.  The  assets  being  deficient,  Lord  Thur- 
low  decreed  that  B.  and  C.  should  abate  in  proportion,  and  he 
directed  the  master  to  inquire  into  the  value  of  the  stock  at  the  end 
of  a  year  after  the  death  of  the  testator. 

Having  in.  the  preceding  section  discussed  the  rule  of  abatement 
as  applicable  to  general  legatees,  when  a  deficiency  of  assets  occurs; 
the  subject  which  next  presents  itself  for  consideration  is,^ 

SECT.  II.  The  rights  of  general  legatees  to  follow  specific  assets 
in  the  possession  of  a  stranger;  when  they  have  been  pledged 
or  disposed  of  by  the  executor,  and  the  produce  ivasted. 
It  is  a  general  rule  of  law  and  of  equity,  that  an  executor  may 
dispose  of  his  testator's  assets ;  over  which  he  has  an  absolute  power 
and  that  they  cannot  be  followed  by  creditors,  much  less  by  lega- 
tees, into  the  hands  of  the  alienee.  The  principle  is  necessity,  arising 
from  the  office  to  which  the  executor  is  appointed,  i.  e.  to  perform 
the  will  in  paying  debts,  &c.  duties  which  he  could  not  carry  into 
execution,  if  persons  dealing  with  him  in  the  disposition  of  the  estate 
were  not  protected  from  an  after  reckoning  at  the  instance  of  cre- 
ditors and  legatees.(a)     Hence  it  follows,  that  if  the  act  of  the  ex- 
ecutor be  consistent  with  his  character  and  duty  as  such,  it  cannot 

'.  C.  C.  349. 
ibid  630. 


SECT.  II.]  to  follow  the  Assets.  299 

be  impeached  ;  for  when  he  sells  any  of  the  assets,  the  law  presumes 
the  disposition  to  have  been  made  to  answer  the  purposes,  for  which 
he  was  invested  with  the  power  of  sale  ;  and,  in  so  doing,  the  execu- 
tor performs  that  act  which  is  necessary  to  llis  authority,  and  there- 
fore lawful,  just,  and  right.  .  Such  is  the  general  rule  of  law  and 
equity  upon  this  subject.  But-  neither  jurisdiction  will  permit  the 
rule  to  .be  abused,  so  as  to  protect  a  disposition  founded  in  fraud, 
or  a  transaction  amounting  to  a  breach  of  trust  concerted  between 
the  executor  and  his  vendee.  Yet  the  latter  is  not  obliged  to  ascer- 
tain whether  in  the  particular  instance  the  executor  is  discreetly  ex- 
ercising his  power.  It  is  sufficient,  if  the  purchaser  be  not  privy  to 
a  breach  of  trust,  nor  engage  in  a  transaction  with  the  executor 
which  is  in  its  nature  incompatible  with  a  legitimate  administration 
of  the  testator's  estate.  In  order  to  exemply  the  above  remarks,  it 
is  proposed  to  consider  — 

1.  Some  of.  the  transactions  of  an  executor  which  have  been 
supported  under  his  general  power  to  dispose  of  the  testator's  per- 
sonal- estate. 

Since  an  executor  is  legally  authorized  to  dispose  of  the  assets, 
the  person  dealing  with  him  for  their  purchase,  does  so  upon  the 
credit  of  that  authority,  so  that  if  the  purchaser  .have  merely  notice 
of  the  will,  or  of  its  contents,.  or  that  he  is  dealing  with  an  executor, 
none  of  those  circumstances  alone  will  enable  creditors  or  legatees 
to  defeat  the  transaction.  The  personal  fund  in  the  possession  of 
the  executor  being  liable  to  debts,  the  purchaser  has  a  right  to  as- 
sume, that  the  sale  made  .by  the  executor  is  necessary  and  proper. 
He  is  not  obliged  to  inquire  and  inform  himself  whether  all  the 
debts  have  been  paid  ;'•  and  although  that  may  have  been  the  case, 
yet,  if  it  were  unknown  to  the  purchaser,  the  general  power  and 
dominion  of  the  executor  over  the  assets  will  protect  the  sale  and 
purchase  ;  so  that  whether  the,  subject  disposed  of,  be  part  of  the 
general  estate,  or  chattels  specifically  bequeathed,  neither  the  gene- 
ral nor  specific  legatees  can  deprive  the  purchaser  of  the  benefit  of 
his  contract. 

Thus  in  Humble  v.  Bill,(b)  the  first  material  case  upon  the  subjett, 
the  testator,  having  a  term  of  twenty-one  years  in  a  printing  office, 
directed  2000Z.  to  be  laised  out  'of  the  profits  for  his  daughter*  and 
her  children.  The  executor  mortgaged  the  term  to  J?.y  who  assigned 
it  to  C.  And  the  Court  of  Chancery  determined  upon  the  general 
power  of  an  executor  to  dispose-of  the  assets,  that  C.  was  entitled 
to  the  benefit  of  the  mortgage.  Although  this  decree  was  reversed 
by  the  House  of  Lords,(e)  the  propriety  of  such  reversal  has  been 
dissented  from  by  succeeding  Judges  ;  viz.  Sir  Joseph  Jekyll  in  Ewer 
v.  Corbet,(d)  and  by.  Lord  Mvanley  in  Jliidrew'v.  Wrigley,(e]  who 
said,  he  should  hardly  have  assented  to  the  reversal  of  the  decree, 
the  cause  of  which  he  ascribed  to  the  particular  circumstances  of 
the  case,  and  not  as  having  any  allusion  to  the  usual  instance  of  an 
executor  mortgaging  the  property  of  his  testator,  which  might  or 
might  not  be  for  the  purposes  of  the  wilk.  His  Honour  also  made 
a  farther  and  a  very  material  observation  :  that  when  the  decree  was 


6)  2Vem.  444.     1  Eq.  Ca.  Abr.  358.  pi.  4.  5.  C. 
c) 


.       .         .        .      .    .     .     . 

(c)  3  Bro.  Parl.  Ca.  5.  8vo.  ed.     (rf)  2  P.  Will.  149.     0)  4  Bro.  C.  C.  13?.' 


300  Rights  of  Legatees,  [Cn.  VII. 

set  aside,  there  was  no  lawyer  in  the  House  of  Lords  unless  perhaps 
Lord  Sonn'i'ti.  Since  th;iT  case,  however,  the  power  of  an  executor, 
\\  ht'ii  there  are  debts,  to  dispose  of  the  assets  whether  specifically 
Influent hrd  <>r  not,  so  as  to  impart  a  good. title  to  a  purchaser  has 
been  established  by  a  variety  of  cases  as  will  appear  in  the  sequel. 

Accordingly  in.  the  case  of  Ewer  v.  Corbet,(f]  the  specific  de- 
visee of  a  term  for  years  endeavoured  to  follow  it  into  the  hands  of 
a  purchaser  from  the  executor,  but  Sir  Joseph  Jekytt  dismissed  the 
bill,  upon  the  principle  before  stated. 

The  last  case  was  immediately  followed  by  that  of  Burting  v. 
Stonard,(g)  in  which  the  testator  bequeathed  one-  third  part  of  his 
personal  estate  (some  of  which  consisted  of  terms  for  years)  to  such 
of  his  children  as  should  be  living  at  his  wife's  death,  and  appointed 
her  executrix,  naming  B.  overseer  of  his  will,  with  a  small  legacy 
for  his  cure  and  trouble ;  The  wife  sold  the  leasehold  to  B..  and  the 
transaction  was  established  by  the  decree  of  Sir  Joseph  Jekyll,  who 
observed,  that  the  case  was  not  so  strong  as- the  last,  since  there  was 
nothing  specific  nor  any  particular  lease  devised  to  the  children. 

The  cases  which  have  rjeen  cited  are  those  of  sales  only.  But 
the  executor's  power  of  absolute  disposition  necessarily  includes 
that  of  mortgaging  or  pledging  the  testator's  estate ;  a  mode  of 
dealing  with  the  assets  which  (although  according  to  some  dicta, 
suspicious,)  when  properly  adopted,  may  be  very  beneficial  to  lega- 
tees, by  preserving  the  property  entire,  Avhen  the  demands  upon  it 
are  only  of  small  amount.  The  act,  therefore,  of  pledging  or  mort- 
gaging the  estate  is  consistent  with  a  due  administration  of  the  as- 
sets; and  there  is  no  reason,  upon  any  implication  of  fraud,  to  de- 
prive" the  executor  of  that  power  and  to  defeat  the  title  of  a  bonft  fide 
pledgee  "or  mortgagee.  In. Scott  v.  Tykr,(h)  Lord  Thurlow  express- 
ed himself  to  the  following  effect.:  It  is  of  great  consequence  that 
no  rules  should  be  laid  down  here,  which  may  impede  executors  in 
their  administration  or  render  their  disposition  of  the  testator's  ef- 
fects unsafe  or  uncertain  to  a  purchaser,  his  title  is  complete  by  sale 
and  deliver^-,  what  becomes  of  the  price  is  of  no  concern  to  him. 
This  observation  applies  equally  to  mortgages  or  pledges,  and  even 
to  the  present  instance,  where  assignable  bonds  were  merely  pledg- 
ed without  assignment.  Hence>  it  appears,-  that  if  the  title  of  the 
pledgee  or  mortgagee  be  purely  equitable,  a  court  of  equity  will  en- 
force his  security  notwithstanding  the  executor  may  have  misapplied 
the  consideration  -money. (i)  The  power  of  an  executor  to  pledge, 
or  mortgage  his  testator's  estate  has  never  been  seriously  doubted, 
and  even  to  pay  .his  own  .debts,  if  the  intention  be  unknown  to  the 
alienee. (k)  The  questions  which  have  arisen'  and  been  decided 
were,  whether  the  transactions  as  between  the  executor  and  the 
pledgee  or  mortgagee- were  bond  fide  or  not. 

Some  judges  have  expressed  opinions,  that  the  power  of  an  exe- 
cutor to  dispose  of  the  assets  may  be  restricted,  so  as  to  make  it 
necessary  for  a  purchaser,  mortgagee,  or  pledgee,  to  see  thatt  he 
money  is  properly  applied;  as,  when  the  executor  does  not  take  the 

C/")  2  P.  Will.  148.  (g-)  Ibid.  ISO.  (A)  2  Dick.  725. 

(i)  See  17  Ves.  167.  (*)  2  Ves.  sen.  268. 


SECT.  II.]  to  follow  the  Assets.  301 

personal  estate  merely  as  executor,  but  as  a  trustee  also,  by  direct 
bequest,  upon  particular  trusts  declared  by  the  testator. 

Thus  in  Elliot  v.  Merriman,(l)  according  to  Barnardistori's  Re- 
port, it  is  said  by  the  Master  of  the  Rolls,  "  that  personal  estate  may 
be  clothed  with  such  a  particular  trust,  that  it  is  possible  the  Court 
«  of  Chancery  in  some  cases  may  require  a  purchaser  to  see  the  mo- 
ney rightly  applied ;  a  declaration  approved,  as  it  seems,  by  Lord 
Kenyan  M.  Rl  in  Bonney  v.  Ridgard.(m)     But  such  a  trust  has  not 
yet  occurred  and  received  the  stamp  of  judicial  authority.     It  is  in- 
deed difficult  to  conceive  how  such  a  trust  could  be  framed  to  pro- 
duce the  effect  supposed  to  belong  to  it ;  for  whatever  be  the  trust 
declared  of  the  personal  estate,  the  executor  must  first  take  it  in  that 
character  to  pay  the  testator's  debts,  and  then,  as  incident  to  such 
obligation,  he  must  have  the  power  of  disposition  over  the  assets. 
He  may,  therefore,  sell  or  pledge  them,  and  the  purchaser  or  mort- 
gagee in  dealing  with  him  is  under  no  necessity  of  providing  that  his 
money  shall  be  applied  to  the  purposes  of  the  will,  the  administration 
of  the  fund  belonging  ex  qffido  to  the  executor.     It  being  settled 
that  the  purchaser  or  mortgagee  is  not  required  to  see  his  money 
appropriated  in  the  discharge  of  debts,  nor  to  examine  whether  there 
be  any  or  not,  the  possibility  of  their  existence  at  the  period  of  the 
transaction  (although  all  of  them  may  have  been  satisfied  without 
his  knowledge)  will  support  his  title  under  the  executor.     If  then 
the  purchaser  or  mortgagee  be  not  obliged  to  take  care  that  the 
money  is  applied  in  payment  of  debts,  it  would  be  unreasonable  to 
require  him  to  look  further,  and  to  make  him  responsible  for  neglect- 
ing to  see  the  money  appropriated  according  to  the  trusts  of  the  will, 
whether  they  be  engrafted  upon  his  office  as  the  executor,  or  the 
personal  estate  be  bequeathed  to  another  person  upon  those  trusts ; 
the  legal  interest  in  each  case  continuing  in  the  executor  until  all 
the  debts  be  paid ;  and  there  appears  to  be  no  more  reason  in  those 
cases  to  permit  the  cestui  que  trusts  to  follow  the  assets  in  the  hands 
of  the  purchaser  or  mortgagee,  when  the  executor  has  misapplied 
the  money,  than  in  ordinary  cases,  in  which  we  have  seen  that  claim 
to  be  inadmissible  to  the  general  and  specific  legacies. 

Lord  Hardwicke  expressed  his  opinion  to  the  above  effect  in 
Mead  v.  Orrery,(n)  a  case  in  which  the  testator  devised  to  his  exe- 
cutors, and  their  heirs,  &c.  all  his  residuary  real  and  personal  estates 
in  trust  to  pay  debts,  with  a  direction  to  make  equal  division  of  the 
surplus  among  his  five  children.  One  objection  taken  to  a  mortgage 
made  by  (he  executors  was,  that  they  were  to  be  considered  trustees, 
and  that  the  whole  of  the  testator's  personal  estate  was  affected  by 
the  trusts,  which  rendered  it  necessary  for  a  purchaser  or  mortgagee 
to  see  not  only  that  the  money  was  properly  applied,  but  that  the 
transaction  was  such,  as  was  authorized  by  the  trusts,  notwithstand- 
ing the  general  power  of  executors  to  dispose  of  the  assets  in  pay- 
ment of  debts  in  the  absence  of  an  express  trust,  and  the  safety  of 
a  purchaser  or  mortgagee  in  taking  the  property  from  them  with- 
out attending  to  their  application  of  his  money  ;  the  trust  in  the 
present  case  being  (as  it  was  insisted)  an  exception  to  the  rule. 

(0  Barnard,  Rep.  81.     (m)  4  Bro.  C.  C.  130.     1  Cox.  145.     (n)  3  Atk.  235.  239. 
VOL.  i.  Q  q 


302  Rights  of  Legatees,  [Cn.  VI'. 

But  Lord  Hardwicke  was  of  a  different  opinion,  judiciously  observ- 
ing, that  the  manner  of  devising  did  not  alter  or  restrain  the 
power  of  executors  over  the  personal  estate,  and  that  the  substance 
of-  the  bequest  was  only  an  appointment  of  executors,  with  a  gift 
to  them  of  the  surplus  fund  to  be  divided  among  the  children. (o) 

The  case  of  Elliot  v.  Merriman,(p)  in  which  the  Master  of  the 
Rolls  expressed  himself  as  before  mentioned  in  regard  to  the  pos- 
sibility of  creating  a  trust  of  personal  estate,  which  might  impose 
upon  a  purchaser  or  mortgagee  the  necessity  of  attending  to  the 
application  of  the  money,  contains  an  opinion  hardly  to  be  reconciled 
with  the  other  pronounced  by  him  in  his  judgment ;  for  that  was  a 
case  where  the  testator  devised  his  personal  estate,  together  with 
his  real,  to  the  executor,  absolutely  charged  (equivalent  to  a  trust) 
with  the  payment  of  debts  and  legacies.  And  yet  that  charge  or 
trust  did  not  appear  to  the  Master  of  the  Rolls  sufficient  to  rerfder 
it  necessary  for  a  purchaser  of  part  of  the  assets,  consisting  of  lease- 
hold property,  to  see  to  the  application  of  the  purchase  money.  His 
Honour  said,  "  that  as  to  the  leaseholds,  they  are  out  of  the  case  ; 
for  if  a  man  purchase  such  an  estate  from  an  executor,  the  trust  no 
longer  continues  upon  the  land ;  since,  if  money  be  wanting,  an 
executor,  must  sell.  To  entertain  a  doubt  to  the  contrary  would 
make  it  impossible  for  an  executor  to  raise  assets,  as  no  person 
would  venture  to  buy.  The  Court  (continued  his  Honour)  chooses 
rather  to  abide  by  its  general  rules,  than  to  let  in  nice  distinctions 
in  order  to  relieve  particular  persons,  though  even  in  the  case  of 
creditors  themselves." 

It  may  probably  be  considered,  for  the  reasons  before  stated,  and 
in  reference  to  the  last  observation  respecting  the  propriety  of  ad- 
hearing  to  general  rules,  that  it  is  of  no  consequence  with  reference 
to  the  power  of  executors  to  dispose  of  the  assets,  whether  they  be 
bequeathed  upon  trust  or  not. (9) 

The  principle  upon  which  an  executor  is  allowed  at  law  and  in 
equity  so  extensive  a  power  over  property,  which  he  derives  from  the 
testator,  is  the  necessity  of  enabling  him  to  execute  his  office  and 
trust,  and  of  preventing  the  inconvenience  of  implicating  third  per- 
sons in  inquiries  as  to  the  application  of  the  money  produced  by 
conversion  of  the  estate.  But  that  principle  will  not  protect  trans- 
actions between  the  executor  and  a  stranger,  where  the  latter  is  in- 
volved with  the  executor  in  the  commission  of  a  breach  of  trust,  or 
in  a  devastavit.  We  shall  therefore  proceed  to  consider — 

2.  Under  what  circumstances  legatees  may  or  may  not  defeat  a 
sale  or  mortgage  made  by  an  executor,  under  his  general  power  to 
dispose  of  the  assets,  when  he  has  misapplied  the  proceeds. 

That  a  legatee,  whether  general,  specific,  or  residuary,  is  entitled 
to  follow  the  assets.,  appears  to  be  now  settled.(r)  And  it  seems, 
that  those  cases  only  will  form  exceptions  to  the  general  power  with 
which  executors  are  invested  to  dispose  of  the  testator's  estate,  that 
are  founded  in  circumstances  showing  or  implying  collusion  between 
a  purchaser  or  mortgagee  and  the  executor  ;  so  as  to  implicate  the 
former  in  a  charge  of  participating  with  the  latter  in  an  improper 

(o)  See  17  Ves.  167.     ( ft)  2  Atk.  42.     Barnard.  78,  81. 

(?)  Scott  v.  Tyler,  2  Dick,  712.     2  Bro.  C.  C.  431.  S.  C. 

(r)  Hillv.  Simflson,  7  Ves.  152.     M'Leodv.  Drummond,  17  Ves.  169. 


SECT.  II.]  .  to  follow  the  Assets.  303 

conversion  and  application  of  the  estate.  That  the  executor  may 
waste  the  money,  is  not  alone  sufficient  to  invalidate  his  sale  or 
mortgage  of  the  property.  In  order  to  produce  that  effect,  it 
must  be  shown,  that  the  purchaser  or  mortgagee  was  active,  and 
participated  in  a  breach  of  trust  or  devastavit  committed  by  the 
executor.  In  short,  it  is  conceived  that  the  purchaser  or  mortgagee 
must  not  concur  in  any  act,  which  manifests  from  the  transaction 
itself  that  it  is  not  a  legitimate  mode  of  administering  the  estate ;  it 
making  no  difference,  whether  he  be  to  derive  benefit  from  it  or 
not ;  for  the  nature  of  the  transaction  imparts  notice  to  him  that  the 
executor  is  dealing  with  the  assets  not  in  a  due  course  of  adminis- 
tration j  a  knowledge  depriving  him  of  the  protection  which  he 
would  otherwise  have  under  the  executor's  general  power  to  dis- 
pose of  the  assets,  and  involving  him  in  all  the  consequences  which 
belong  to  a  breach  of  trust  or  a  devastavit  in  the  executor,  one  of 
which  is  to  entitle  the  creditors  and  legatees  to  follow  the  assets  into 
his  hands.  In  Scott  v.  Tyler, (s]  Lord  Thurlow  expressed  himself  as 
follows  upon  the  present  subject:  "  that  if  a  person  concert  with  an 
executor  by  obtaining  the  testator's  effects  at  a  nominal  price,  or  at  a 
fradulent  under-value,  or  by  applying  the  real  value  to  the  purchase 
of  other  subjects  for  his  own  behoof,  or  in  extinguishing  the  private 
debt  of  the  executor,  or  in  any  other  manner  contrary  to  the  duty  of 
the  office  of  executor,  such  concert  will  involve  the  seeming  pur- 
chaser or  his  pawnee,  and  make  him  liable  for  the  full  value."' 

It  follows,  from  what  has  been  said,  that  a  person  cannot  take  as 
purchaser  or  mortgagee  any  of  the  assets  in  consideration  of  a  debt 
owing  to  him  by  the  executor  personally,  because  the  transaction  is 
such  as  cannot  possibly  be  reconciled  with  the  duty  of  an  executor 
in  disposing  of  the  testator's  estate  ;  and  as  Lord  Alvanley  observed 
in  Andrew  v.  Wrigley,(t]  "  there  cannot  be  a  stronger  case  of  de- 
vastavit, than  in  the  instance  of  an  executor  aliening  the  property  of 
his  testator  to  pay  his  own  debts,"  with  the  privity  of  the  alienee. 
When  s.uch  is  the  consideration  of  alienation,  it  seems  to  be  the  duty 
of  the  alienee  previously  to  ascertain  whether  all  the  testator's  debts 
have  been  paid,  and  the  trusts  of  the  will  performed ;  and  that  the 
executor  has  a  right  to  make  the  disposition,  as  the  person  entitled 
to  the  property  ;  and  if  he  omit  to  do  so,  it  is  but  reasonable  that  he 
should  be  held  responsible  ta  the  persons  having  claims  under  the 
testator's  will,  We  shall  now  examine,  whether  these  remarks  are 
supported  by  authority. 

In  Crane  v.  Drake,(u) .the  executor  was  also  devisee,  and  wasted 
the  assets.  The  defendant,  having  notice  of  the  plaintiff's  demand 
(a  debt  owing  by  the  testator,)  purchased  of  the  executor  a  lease- 
hold estatej  part  of  the  assets,  for  900/. ;  in  the  payment  for  which 
purchase  he  was  allowed  2QO/.  due  to  him  from  the  testator,  a  debt 
owing  to  himself  from  the  executor,  to  the  amount  of  5  50Z.;  and  the 
remainder  of  the  purchase  money,  1501.  was  paid  to  the  executor. 
It  was  determined  first  at  the  Rolls,  and  finally  by  the  Lord  Chan- 
cellor, that  the  plaintiff  was  entitled  to  a  satisfaction  of  his  debt  out 
of  the  leasehold  estate  purchased  by  the  defendant,  upon  the  princi- 

(s)  2  Dick.  725.  (0  4  Bro.  C.  C.  137. 

(«)  2  Vern.  616.     18  Vin.  Abr,  121.  in  marg.  S.  C. 


304  Rights  of  Legatees,  [Cn.  VII. 

pie,  that  the  defendant  was  a  party,  and  consenting  to  and  contri- 
ving a  dfvastavit. 

It  appears  that  the  last  case  was  one  of  extreme  fraud,  for  not  only 
did  the  alienee  take  the  assets  in  liquidation  of  his  own  debt  due  from 
the  executor  in  his  individual  character,  which  according  to  Lords 
Jllvariley  and  Thurlow,  was  sufficient  of  itself  to  invalidate  the  trans- 
action, as  against  creditors  and  legatees  ;  but  having  notice  of  the 
plaintiff's  debt,  he  and  the  executor  (as  appears  from  Lord  Hard- 
wicke's  observations  in  Nugent  v.  Gifford)  contrived  the  alienation 
to  defeat  a  bona  fide  creditor  of  the  testator,  and  by  that  contrivance, 
became  a  party  to,  and  active  in,  the  commission  of  a  devastavit. 

The  next  case  which  occurred,  was  Pagett  v.  Hoskins,(x)  in  which 
a  testator,  being  possessed  of  1 8,000 J.  gave-6000Z.  a  piece  to  his  two 
daughters,  and  appointed  his  wife  executrix,  who  consequently  be- 
came entitled  to  the  remaining  6000Z.  Upon  the  widow's  second 
marriage,  she  stated  her  first  husband's  estate  at  about  18,OOOZ.  and 
retained  6000Z.  as  her  share  of  it;  in  consideration  of  which,  her  se- 
cond husband  agreed  by  articles  to  settle  a  jointure  upon  her,  the 
articles  reciting  the  GOOOZ/to  be  part  of  the  first  husband's  assets, 
and  as  his  widow's  proportion,  but  subject  to  the  result  of  an  account 
which  was  then  unsettled,  upon  the  taking  of  which,  if  her  share 
should  be  found  less  than  that  sum,  the  second  husband  provided  for 
himself  an  indemnity.  Under  those  circumstances,  and  in  conse- 
quence of  a  reduction  of  the  testator's  estate  by  losses  to  60001. 
Lord  Cowper  decreed,  that  the  two  children  were  entitled  to  follow 
the  6000Z.  which  had  been  received  by  the  second  husband.  And 
although  his  Lordship  said,  that  his  decree  was  wholly  founded  upon  the 
circumstances  of  the  case,  yet  it  is  presumed  on  the  authority  of  the 
high  opinions  before  stated,  that  if  there  had  been  no  such  particu- 
lar circumstances  attending  the  transaction,  still,  since  the  considera- 
tion upon  which  the  6000Z.  came  into  the  hands  of  the  second  hus- 
band, was  such  as  to  be  inconsistent  with  the  duty  and  office  of  an 
executrix,  in  administering  the  assets  of  her  testator,  viz.  in  apply- 
ing them  for  the  purchase  of  a  benefit  to  herself,  the  second  husband 
could  not  retain  them  either  against  the  testator's  creditors  or  lega- 
tees ;  but  that  the  nature  of  the  transaction  with  an  executrix,  im- 
posed upon  him  the  obligation  to  make  such  inquiries  as  before  men- 
tioned.^) 

The  next  two  cases  in  succession,  are  in  favour  of  the  executor's 
power  of  alienation,  though  made  to  answer  his  own  private  pur- 
poses, and  in  breach  of  his  duty  as  executor  ;  but  their  principle  is 
considered  to  be  unstable  and  unsatisfactory. 

The  first  case  is  Nugent  v.  Gifford,(z)  in  which  a  term  for  years 
being  vested  in  trustees  for  Sir  Richard  Billings,  he  bequeathed 
several  specific  legacies,  and  made  Mr.  Jirundell  executor  and  resi- 
duary legatee.  Two  years  after  the  testator's  death,  Arunddl  be- 
ame  indebted  to  Knight,  one  of  the  trustees  of  the  term,  and  as- 
signed it  to  him.  The  question  was,  whether  the  testator's  daugh- 
ters, as  creditors  of  the  testator,  were  entitled  to  follow  the  term 
into  the  hands  of  Knight;  they  insisting,  that  the  assignment  being 

(JT)  Pre  Ch.  431.     GUb.  Ea.  Rep.  ill.  5 .  C.  and  see  1  Atk.  464, 

(y)  Ante,  p.  303.    (2)  1  Atk.  463.  and  stated  from  Reg.  Lib.  4  Br6.  C.  C.  136. 


SECT.  II.]  to  follow  the  Assets.  305 

in  consideration  of  the  executor's  own  debt,  was  void  as  against 
them.  But  Lord  Hardwicke  decided  to  the  contrary,  under  the 
impression  that  the  executor's  general  power  of  disposition,  enabled 
him  to  alien  the  term  even  for  his  own  debt.  That  certainly  was 
the  sole  principle,  upon  which  his  Lordship  grounded  his.  decree  ; 
and  the  circumstance  of  the  executor  being  also  residuary  legatee 
was  not  noticed,  although  Lord  Jllvanley,  in  his  comments  upon  the 
case, (a)  attributes  great  importance  to  that  accident ;  observing, 
that  it  was  not  incumbent  upon  a  purchaser  from  an  executor  and 
residuary  legatee,  to  inquire  whether  the  debts  were  paid ;  an  ob- 
servation equally  true  and  apposite,  whether  the  executor  be  resi- 
duary legatee  or  not ;  but  the  principle  does  not  apply  in  either 
case  where  the  consideration  of  purchase  is  the  private  debt  of  the 
executor.  Let  us  separate  the  two  characters,  and  examine  them 
apart,  to  discover,  whether  the  executor,  being  also  residuary  lega- 
tee, can  affect  the  rights  of  creditors  or  legatees.  It  is  presumed, 
tfiat,  as  mere  executor,  his  disposal  of  assets  to  pay  or  secure  his 
own  debt,  could  not  prejudice  individuals  interested  under  the  tes- 
tator's will;  and  as  residuary  legatee,  he  could  only  dispose  of  what 
he  was  entitled  to  in  that  character,  viz.  what  remained  after  all  the 
trusts  of  the  will  were  performed.  It  appears  then,  that  the  acci- 
dent of  an  executor  being  also  residuary  legatee,  cannot  upon  prin- 
ciple impart  to  him  any  larger  authority  over  the  assets  than  what 
he  possessed  by  virtue  of  his  office  as  executor  ;(&)  a  consideration 
confirmatory  of  the  supposition,  that  the  case  of  Nugent  v.  Gifford 
was,  as  appears  from  the  report,  determined  by  Lord  Hardwicke 
upon  the  principle,  that  the  general  power  of  disposition,  which  the 
law  gives  to  executors  for  the  sole  reasons  before  stated,  authorizes 
them,  in  subversion  of  those  reasons,  to  sell  or  pledge  the  assets  for 
their  own  individual  debts. 

The  second  case,  in  which  his  Lordship  expressed  a  similar  opi- 
nion is,  Mead\.  Lord  Orrery,  (c)  There,  the  executors  (one  of  them 
named  John  Mead,  being  entitled  to  a  share  of  the  residue)  assign- 
ed a  mortgage  belonging  to  the  testator,  as  a  security  in  respect  of 
a  receivership,  to  which  John  the  co-executor  had  been  appointed. 
John  having  died  greatly  indebted  on  account  of  his  receipts  of 
money  as  receiver,  the  question  was,  whether  the  assignment  was 
binding  upon  the  other  residuary  legatees  *?  And  Lord  Hardwicke 
determined  in  the  affirmative,  upon  the  same  principle,  that  he  -de- 
cided the  case  of  Nugent  v.  Gifford ;  for  although  there  were  other 
circumstances,  yet  all  .of  them  being  accessories  to  the  general 
power  of  executors  to  dispose  of  the  assets,  must  stand  or  fall 
with  it. 

Notwithstanding  it  clearly  appears  from  the  last  two  cases,  that 
Lord  Hardwicke's  decrees  were  founded  upon  the  general  power  of 
executors  to  sell  or  pledge  the  personal  estate  of  their  testators,  yet, 
in  a  subsequent  case  of  Taner  v.  Iver,(d]  his  Lordship  seems  to  have 
been  so  forcibly  struck  with  ther  impropriety  of  extending  that  power 
so  far,  consistently  with  the  reasons  for  which  it  was  given,  as  to  en- 
able executors  to  dispose  of  the  assets  in  satisfaction  of  their  own 

(a)  4  Bro.  C.  C.  137.         .  (b)  Scott  v.  Tyler,  2  Dick,  712. 

(c)  3  Atk.  235.  ((/)  2  Ves.  sen.  469. 


306  Rights  of  Legatees,  [CH,  VII. 

debts,  that  lie  disavowed  his  decision  in  Nugent  v.  Gifford,  and  as 
IIKIV  In-  inferred,  his  decree  in  Meadv.  Lord  Orrery,  having  been 
made  upon  any  general  principle,  but  on  the  particular  circum- 
stances. Hence  Lord  Hardwicke  in  Abandoning  aground,  which,  if 
irnnl)le,-would  have  supported  both  decrees,  showed  at  least  his 
doubt,  whether  the  general  power  of  executors  over  the  assets  would 
enable  them  to  dispose  of  the  estate  for  their  own  purposes,  in  a  way 
declaring  to  the  purchaser  or  mortgagee,  that  they  were  not  dealing 
Avith  the  property  in  their  character  of  executors.  That  such  a 
power  would  be  mischievous  in  the  highest  degree  is  obvious.  It 
would  enable  an  executor  to  dispose  of  or  pledge  the  estate  for  any 
purpose,  however  inconsistent  with  that  office,  in  short,  he  would  be 
authorized  to  do  whatever  he  pleased  with  the  property  of  his  testa- 
tor. Common  sense  revolts  at  the  construction  of  the  executor's 
power  of  disposition  to  such  an  extent,  and  we  find  the  sentiments 
of  Lords  Thurlow  and  JLlvanley  in  unison  against  it.(e)  In  M'Leod 
v.  Drummon'd,(f )  Lord  Eldon  considered  the  authority  of  the  la%t 
two  cases  to  have  been  shaken  by  Sir  Thomas  Sewell  and  Lord 
Kenyan  in  Bonney  v.  Ridgard  ;(g)  the  latter  judge  observing,  m 
allusion  to  Mead  v.  Lord  Orrery,  that  it  became  him  to  think  seri- 
ously before  he  differed  from  Lord  Hardwieke,  but  he  could  not  sub- 
scribe to  his  Lordship's  opinion  there  expressed,  and  that  had  the 
case  come  before  hirrr'for  decision,  he  would  have  determined  it 
otherwise,  an  opinion  which  he  proved  in  detail  in  Bonney  v.  Rid- 
gard, which  was  as  follows  : 

The  testator  bequeathed  to  his  wife  and  three  daughters  all  his 
estates  (leaseholds)  in  equal  shares,  with  a  direction  to  his  wife  and 
one  Theobald  his  executors  to  dispose  of  them.  The  testator  died 
in  the  year  1748,  avid  his  youngest  child  attained  twenty-one  in  1764. 
The  widow  alone  proved  the  will,  and  married  Ridgard.  They  join- 
ed in  a  mortgage  of  the  land  to  aMi*s.  Mascall,  and  in  1752  they  as- 
signed to  one  Barnard  the  equity  of  redemption  for  350Z.  which  sum 
was  composed  of  two  debts  (in  the  whole  3447.)  owing  from  Ridgard 
to  Barnard,  and  of  61.  in  money,  paid'when  the  assignment  was  ex- 
ecuted ;  the  deed  reciting  the  two  debts.  Barnard  sold  the  estate, 
and  he  and  his  vendees  had  been  in  the  possession  of  it  from  the 
year  1752,  to,  and  during  the  pendency  of  the  suit  in  1784.  The 
question  was,  whether  the  daughters  and  their  husbands  were  enti- 
tled to  recover  the  property,. notwithstanding  the  assignment  to  Bar- 
nard, <md  his  sale  of  it"?  Sir  Thomas  Sewell,  M.  R.  determined  in 
the  affirmative;  a  decision)  which  not  being  acquiesced  in,  the  cause 
was  re-heard  by  Lord  Kenyon,  M.  R.  who,  although  he  decided 
against  the  plaintiff's  on  account  of  the  length  of  time  which  had 
elapsed  between  the  accruing  and  the  prosecution  of  their  claims, 
yet  he.  expressed  what -his  decision  would  have  been  had  he  been 
under  the' necessity  of  determining  upon  the  merits  of  the  case; 
since  his  Lordship's  observations  are  clear  and  important,  that  con- 
sideration will  apologize  for  the  submission  of  them  in  detail  to  the 
reader.  "  As  far  as.  respects  the  mortgage  to  Mrs.  Mascall  (in  which 
there  is  a  general  recital  only  that  Ridgard  and  his  wife  had  occa- 
sion for  1000Z.)  I  (  said  his  Lordship)  have  had  some  hesitation,  but 

(0  Ante,  pp.  303,  304.  (/)  17  Ves.  165.  (£•)  1  Cox,  146,  148. 


SECT:  II.]  to  follow  the  Assets.  307 

upon  the  whole,  I  do  not  think  that  transaction,  impeachable,  for  I 
am  of  opinion,  that  a  purchase  from  an  executor  need  not  have  any 
recital  of  the  purpose  for  which  the  money  is  raised.  Ho  is  allowed 
to  trust  the  person  whom  the  testator  had  trusted.  If,  on  the  other 
hand,  the  moggy  appear  to  have -been  borrowed  for  improper  pur- 
poses, to  be  sure  the  transaction  cannot  stand.  Here  the  husband 
and  wife  join  in  the  mortgage.  The  purpose  for  which  the  money 
is  wanted  is  undefined.  The  money  came  to  the  hands  of  the  ex- 
ecutrix which  it  was  her.  duty  to  apply ;.  and  for  any  thing  Mrs.  Mas- 
call  could  know,  it  was  properly  applied.  Therefore  so  far  as  any 
person  stands  in  privity,  of  estate  with  Mrs.  Mascall,  the  transaction 
is  valid.  But  then  comes  the  deed  of  1752 $  which  releases  the  equity 
of  ademption  to  Barnard,  .and  recites  that  Ridgard  was  then  justly 
indebted  to  Barnard  in  200Z.  by  bond,  111.  for  interest,  and  1211.  by 
simple  contract,  which  sums  with  the  payment  of  61.  formed  the  con- 
sideration of  sale.  This  was  a  few  months  after  the  marriage  of 
Ridgard 'to  the  executrix,  which  satisfies  me,  that  this  money  was 
not  raised  for  fair  legal  purposes.  The  fund  in  the  hands  of  the  widow 
was  applicable  to  the  payment  of  the  debts,  &,c.  and  after  that  to 
certain  defined  puposes  declared  by  the  will.  Barnard  had  full 
notice  of  the  will,  he  knew  that,  after  the  debts  were  paid,  this  fund 
ought  to  be  so  applied,  and  he  therefore  connived  at  its  being  mis- 
applied. If,  then,  the  case  turned  upon  this,  I  should  be  bound  to 
set  aside  the  transaction,  or  rather -to  turn  the  defendants  into  trus- 
tees for  the  plaintiffs." 

The  substance  of  his  Lordship's  opinion  may  be  thus  stated.  If 
there  were  debts  of  the  testator  subsisting  at  the  time  of  the  release 
to  Barnard  the  transaction  with  him  was  of  such  a  nature,  as  showed 
that  he  was  consenting  to  a  devastavit  in  the  executrix,  viz.  in  ac- 
cepting from  her  part  of  the  assets  in  satisfaction  of  a  debt  due  from 
her  husband  personally  to  Barnard,  which  was  inadmissible.  On 
supposing  all  the'  debts  to  have  been  discharged,  the  consequence 
would  be  the  same ;  since  it  was  the  duty  of  Barnard  to  have  seen 
that  all  the  trusts  of  the  will  had  been  performed,  and-  that  the  ex- 
ecutrix was  entitled  to  the  property,  before  he  accepted  any  of  the 
assets  in  payment  of  the  debt  due  to  him  from  her  husband.  The 
reason  is,  that  part  of  the  consideration  being  the  debt  of  the  ex- 
ecutrix's husband,  clearly  showed  that  the  purchaser  was  not  dealing 
with  her  as  executrix ;  so  that  the  power  of  disposition  given  to  ex- 
ecutors over  the  assets  of  their  testators  did  not  apply  to  such  a  case. 
If  that  reason  be  correct,  the  case  of  Whale  v.  Booth,(h)  may  be 
doubted.  There  the  executors  confessed  a  judgment  to  one  of  their 
own  creditors,  and  permitted  him  to  take  in  execution  assets  belong- 
ing to  their  testator,  and  joined  in  executing  to  him  a  bill  of  sale. 
Lord  Mansfield  and  Buller,  J.  held  upon  the  principle  of  the  execu- 
tor's power  to  dispose  of  the  whole,  that  the  title  of  the  executor 
could  not  be  impeached  at  the  instance  of  a  creditor  of  the  testator. 
From  the  observations  made  at  the  conclusion  of  the  case  of 
Bonney  v.  Ridgard,  viz.  that  the  purchaser  did  not  deal  with  the 
executrix  in  that  character,  as  was  manifest  when  he  took  from  her 
the  assets  for  a  consideration  which  had  no  connection  with  her 

(A)  4  Term.  Rep.  625.  in  no(is. 


Rights  of  Legatees,  [Cn.  VII. 

office  it  appears  that  the  case  of  Whale  v.  Booth  was  improperly 
treated,  when  considered  as  a  question  upon  the  power  of  executors 
to  dispose  of  their  testator's  personal  estate ;  for  it  ought  rather  to 
have  been  viewed  as  a  transaction  between  strangers,  where  the 
vendors,  in  order  to  make  a  good-  title,  must  have  shown,  that  all 
claims  affecting  the  property  had  been  discharged,  and  that  they 
were  in  a  situation  to  dispose  of  it  free  from  incumbrances. 

The  case  of  Farr  v.  Newman,(i)  which  followed  that  of  Whale  v. 
Booth,  was  not  a  decision  on  the  present  question.  It  is  true,  that 
the  Judges,  probably  in  deference  to  the  case  last  mentioned,  and 
to  those  before  Lord  Hardwicke,  of  Nugent  v.  Gifford  and  Mead  v. 
Lord  Orrery,(k)  treated,  as  if  settled,  the  power  of  executors  to 
dispose  of  the  assets  to  their  own  creditors  to  the  prejudice  of  the 
creditors  and  legatees  of  the  testators ;  yet  they,  as  well  as  Lords 
Hardwicke  and  Mansfield,  admit,  that  if  there  be  any  contrivance 
between  an  executor  and  his  own  creditor,  to  enable  the  former  to 
commit  a  devastavit,  that  circumstance  excepts  the  case  out  of  the 
general  power  of  the  executor  to' dispose  of  the  estate.  Can  there 
be  stronger  evidence  of  contrivance  for  that  purpose  than  in  the  in- 
stance of  a  creditor  of  the  executor  accepting  the  property  of  a  tes- 
tator in  payment  of  a  debt  due  to  him  by  the  executor,  whose  office 
and  duty  proclaim  that  the  executor  was,  in  so  doing,  dealing  with 
the  assets  not  as  executor,  but  as  his  own  9  And  what  necessity 
can  there  be,  in  .order  to  the  due  administration  of 'the  estate,  to 
arm  an  executor  with  the  power  of  wasting  the  assets,  when  the  per- 
son receiving  them  from  him  had,  or  ought  to  be  considered  as 
having,  notice  of  the  misapplication  from  the  transaction  itself. 

Upon  the  whole,  it  is  submitted  that  neither  at  Jaw  nor  in  equity 
does  the  power  of  an  executor  extend  to  authorize  him  to  sell  or 
pledge  the  testator's  assets  with  a  creditor  of  his  own,  so  as  to  pre- 
vent the  persons  interested  under  the  testator's  will  from  following 
them ;  for  the  law  seems  to  say,  as  declared  by  Lord  Kenyan,  "  Let 
executors  do  their  duty,  and  let  the  authority  cease  where  injustice 
begins.  (I) 

But  whatever  may  be  the  decision  of  a  court  at  law,  it  may  be 
considered,  that  a  court  of  equity  would  not  permit  such  a  vendee 
or  mortgagee  to  retain  the  assets  acquired  by  him  for  his  own  debt 
owing  by  the  executor  individually,  and  not  as  executor.  In  addi- 
tion to  Crane  v.  Drake  and  Pagett  v.  Hoskins,  before  stated,  and 
more  pointedly  confirmatory  of  this  remark  than  those  cases,  is  the 
ease  of  Scott  v.  Tyler(m)  which  was  as  follows  : 

The  testator  gave  his  securities  on  the  river  Lee  to  his  executors, 
who  were  also  trustees  for  the  separate  use  of  Margaret  Christiana, 
then  married,  until  she  attained  the  age  of  twenty-one,  and  then  for 
her  absolutely.  The  testator  died  in  the  year  1776,  leaving  the  se- 
curities with  Messrs.  Hankeys,  his  bankers,  with  whom  they  had 
been  deposited  for  safe  custody  in  a  locked  box.  Elizabeth  Tyler, 
one  of  the  executors,  and  sole  residuary  legatee,  being  extensively 
engaged  in  trade,  caused  the  box  to  be  opened  about  three  year's 

«  f  Term.  Rep.  621.  (£)  AntCt  pp.  304,  305. 

(0  4  1  erm.  Rep.  651.  and  see  Eyre,  C.  J.'s  remarks  in  Quick  v.  Staines,  1  Bos. 
&Pull.  295.  and  those  of  Lord  Eldonm  M'Leod  v.  Drummond,  17  Ves,  154.  155. 
(OT)  2  Dick.  712. 724.  2  Bro.  C.  C.  431.  5.  C. 


SECT.  II.]  to  follow  the  Assets.  309 

after  the  testator's  death,  and  being  at  that  time  greatly  indebted  to 
the  bankers  on  her  separate  account,  she  pledged  with  them  ten  of 
the  river  Lee  securities,  (which  were  bonds)  for  securing  not  only 
their  prior,  but  also  all  their  subsequent  advances  for  her;  but  the 
bonds  were  not  assigned.  Mrs.  Tyler  having  become  -a  bankrupt, 
the  question  was,  whether  the  bankers  were  entitled  to  retain  the 
bonds  against  Christiana^  The  case,  though  compromised,  never- 
theless contains  Lord  Thurlow's  decided  opinion  against  the  bank- 
ers, upon  the  principle  of  the  deposit  having  been  made  for  the 
executor's  private  debt,  for  which  they  knew  the  assets  not  to  be 
liable  until  all  the  debts  and  legacies  were  satisfied.  This  manner 
of  dealing,  therefore,  with  the  estate,  placed  the  bankers  under  an 
obligation,  as  before  observed,  to  ascertain  at  their  own  peril  the 
fact  above-mentioned,  before  they  accepted  any  of  the  assets  in 
pledge  for  the  private  debt  of  the  executrix. 

Lord  Eldori's  observations,  in  commenting  upon  the  last  case,  must 
not  be  omitted.  "  If  (said  his  Lordship)  an  executor  cannot  deposit 
securities  for  future  advances  to  be  made  to  him,  not  in  his  charac- 
ter of  executor,  but  as  a  trader,  it  is  difficult  to  hold  that  he  may 
make  the  deposit  for  present  advances  not  as  executor,  but  as  acusr- 
tomer  of  the  bank,  in  his  own  individual  trade. (n) 

The  case  that  followed,  and  bearing  great  resemblance  to  Scott 
v.  Tyler,  was  Hill  v.  Simpson,(o)  in  which  Mrs.  Smith,  being  an  ex-r 
ecutrix  and  a  legatee  under  the  will  of  her  deceased  husband,  and 
having  possessed  all  his  assets,  bequeathed  her  personal  estate  (sub- 
ject to  her  debts,  funeral  and  testamentary  expenses,  and  to  her  late 
husband's  will)  to  her  three  nephews,  the  defendant  Simpson  being 
one  of  them,  and  appointed  them  executors.  Simpson  alone  proved 
the  will,  and  received  the  testatrix's  personal  estate,  and  some  of 
her  late  husband's  assets,  part  of  which,  consisting  of  government 
securities,  Simpson  transferred  to  Mqffatt  &/•  Co.,  his  bankers,  as  a 
security,  not  only  for  what  he  then  owed,  but  for  so  much  money  as 
he  might  afterwards  become  indebted  to  them.  This  transaction 
took  place  within  a  month  after  the  death  of  Mrs.  Smith.  Simpson 
having  become  a  bankrupt,  the  question  was,  whether  Messrs.  Mof- 
fatt  t^  Co.  could  retain  the  property  against  "the  claims  of  two 
general  legatees  of  Mrs.  Smith  ?  And  Sir  William  Grant,  M.  R. 
determined  in  the  negative,  upon  the  same  principle  that  Lord 
Thurlow  would  have  decided  Scott  v.  Tyler,  had  that  case  been  . 
submitted  to  his  decree.  His  Honour  observed,  that  if  the  second 
point  in  Scott  v.  Tyler  had  received  the  decision  which  it  was  ge- 
nerally supposed  would  have  been  given,  (p*)  it  would  be  an  autho- 
rity far  beyond  what  those  plaintiffs  want;  for  in  that  case  the 
executrix  had  disposed  of  the  river  Lee  bonds  four  years  after  the 
death  of  the  testator.  The  bankers  swore  they  knew  nothing  of  the 
will,  and  they  believed  the  bonds  to  be  her  own  property,  not  that 
of  the  testator.  If  that  case  had  been  decided  against  the  bankers, 

.  (rz)  17  Ves.  166.  (o)  7  Ves.  152. 

(/i)  That  Lord  Thurlotu's  judgment  would  have  been  against  the  bankers,  ap- 
pears from  2  Dick.  724.  And  in  M'Leod  v.  Drummond,  17  Ves.  166.  Lord 
JEldon  declared  he  could  confirm  Mr.  Dicken's  assertion,  that  the  judgment  stated 
by  him  contained  Lord  Thurlow's  opinion,  and  intended  to  have  been  delivered  by 
him,  if  the  cause  had  not  been  compromised. 
VOL.  i.  R  r 


310  Rights  of  Legatees,  [Cn.  VII. 

it  would  have  furnished  a  stronger  authority  than  is  necessary  for 
these  plaintiffs.(?) 

Since  the  observations  of  the  Master  of  the  Rolls,  in  delivering 
judgment  in  the  last  case,  are  confirmatory  of  those  which  have'been 
previously  submitted  upon  this  difficult  subject,  that  consideration 
will  apologise  for-  their  insertion*  "  The  express  purpose  (said  his 
Honour)  for  the  transfer  of  the  funds,  appears  to  have  been  to  secure 
a  debt  of  the  executor's  own,  which  he  already  owed  to  the  bankers, 
and  other  advances  they  were  to  make  by  taking  up  bills  of  his  then 
actually  outstanding.  The  bankers,  therefore,  had  distinct  notice 
that  the  money  was  not  to  be  applied  to  any  demand  upon  the  estate 
of  either  testator,  but  the  assets  were  to  be  wholly  applied  to  the 
private  purpose  of  the  executor.  Allowing  every  case  to  remain  un- 
disturbed, does  it  follow  from  any  that  an  executor  in  the  first  month 
after  the  testator's  death  can  apply  the  assets  in  payment  of  his  own 
debt,  and  that  a  creditor  is  perfectly  safe  in  so  receiving  and  apply- 
ing them,  provided  he  abstain  from  looking  at  the  will,  which  would 
show  the  existence  of  unsatisfied  demands  ?"  It  is  clear  in  regard 
to  an  executor  thus  dealing  and  being  dealt  with,  that  no  rule  of  jus- 
tice permits,  nor  of  convenience  .requires,  that  he  should  have  this 
unbounded  power.  Although  it  may  be  dangerous  at  all  to  restrain 
the  'power  of  purchasing  from  him,  what  inconvenience  can  there  be 
in  holding  that  the  assets,  known  to  be  such,  should  not  be  applied 
in  any  case  for  the  executor's  debt,  unless  the  creditor  should  be  first 
satisfied  of  his  right  *?  It  may  be  essential  that  the  executor  should 
have  the  power  to  sell  the  assets,  but  it  is  not  essential  that  he  should 
have  the  power  to  pay  his  own  creditor;  and  it  is  not  just  that  one 
man's  property  should  be  applied  to  the  payment  of  another  man's 
debt."(r)  Sir  JVilliam  Grant  also  considered  it  to  have  been  the 
duty  of  the  bankers,  before  they  accepted  a  transfer  of  the  funds,  to 
have  satisfied  themselves  of  the  executor's  right  to  pledge  the  assets 
for  a  debt  of  his  own.(s) 

To  the  decision  before  stated  against  the  power  of  executors  to  sell 
or  pledge  the  assets  with  a  creditor  for  their  own  debt,  may  be  add- 
ed the  opinions  of  Lord  Alvanley  in  Andrew  v.  Wrigley,(t)  of  Lord 
Eldonin  M'Leod  v.  Drummond,(u]  and  of  Sir  John  Leach  in  Keane 
v.  Robarts.(x) 

A  difficulty  may  occur  in  ascertaining  the  nature  of  the  transac- 
tion between  the  executor  and  the  person  to  whom  he  has  disposed 
of  the  assets ;  i.  e.  it  may  be  doubtful  whether  the  pledge  of  aliena- 
tion was  in  fact  made  by  the  former  in  the  proper  prosecution  of  his 
trust,  or  in  satisfaction  of,  or  to  secure  his  own  private  debt.  Upon 
this  subject  opinions  seem  to  agree  in  the  following  distinction: 
When  no  money  is  paid  for  the  purchase  or  deposit,  and  it  appears 
that  the  executor  was  indebted  at  the  time  to  the  purchaser  or  mort- 
gagee, it  will  be  presumed,  in  the  absence  of  contrary  evidence,  that 
the  sale  or  mortgage  was  made  in  consideration  of  that  debt,  which 
being  a  devastavit  in  the  executor  with  the  privity  and  concurrence 
of  the  alienee,  will  invalidate  the  transaction  in  regard  tos  persons 
claiming  under  the  testator.  But  that  when  the  consideration  is 

(?)  7  Yes.  169.  (r)7Ves.  168.  (s)  Ibid.  170. 

(0  4  Bro.  C.  C.  136.          (M)  17  Ves.  154.  170.        (*•)  4  Mad.  357. 


SECT.  II.]  to  follow  the  Assets  311 

paid  at  the  time  of  the  sale  or  deposit,  then  as  the  transaction  is  con- 
sistent with  a  fair  administration  of  the  assets,  the  presumption  will 
be  (subject  to  rebuttal  by  proof  of  a  different  intention,)  that  the 
transaction  was  bond  fide,  and  the  money  advanced  to  enable  the  ex- 
ecutor to  execute  the  purposes  of  the  will.(t/) 

An  instance,  however,  occurred  in  M'Leod  v.  Drummond,(z) 
which,  in  Lord  Eldbn's  opinion,  as  also  in  that  of  Sir  John  Leach,(a) 
would  be  sufficient  evidence  of  fraud  in  the  alienees  to  deprive  them 
of  the  benefit  of  their  security,  notwithstanding  they  gave  a  consi- 
deration for  it  to  the  executors.  In  that  case  the  advances  of  Messrs. 
Drummond  (although  paid  at  the  time  of  the  deposits)  were  made  to 
two  executors  (who  were  partners  as  army  agents,)  but  were  so  made 
to  them  in  the  course  of  their  business  as  army  agents,  credit  being 
given  to  them,  not  as  executors,  but  to  their  account  with  Messrs. 
Drummond  in  the  way  of  their  private  business,  which  was  confirm- 
ed by  the  circumstance  that  the  deposits  did  not  consist  of  assets 
alone,  but  also  of  the  separate  property  of  the  executors.  Lord  El- 
dpn  therefore  considered  the  bankers  as  much  parties  to  the  devas- 
tavit,  as  if  they  had  applied  the  money  to  pay  the  private  debt  of  the 
executors,  it  being  quite  immaterial  whether  the  advance  were  made 
for  the  latter  purpose,  or  to  the  private  trade  of  the  executors. (6) 

If  indeed  the  pledge  of  the  assets  in  the  last  case  were  to  be  con- 
sidered valid,  then  as  the  deposit  consisted  of  property  of  the  ex- 
ecutors, as  well  as  of  the  testator,  should  the  whole  of  it  exceed  in 
value  the  debt  or  advance  for  which  it  was  a  security,  the  persons 
beneficially  interested  in  the  testator's  estate  would  have  an  equity 
to  have  the  pledged  assets  exonerated  by  that  portion  of  the  deposit, 
which  formed  part  of  the  individual  property  of  the  executors. (c) 

Any  artifice  between  an  executor  and  a  third  person,  by  which  a 
misapplication  of  the  assets  is  affected,  will  vitiate  the  transaction ; 
and  however  artfully  the  plan  be  contrived,  it  will  not  be  permitted, 
when  detected,  to  operate  to  the  prejudice  of  persons  interested 
under  the  will.  Now  executors  may  appoint  an  agent  to  collect 
and  dispose  of  the  testators's  estate,  and  to  remit  the  produce  to 
them,  and  such  person  is  only  answerable  to  his  employers ;  and 
although  he  may  be  .acquainted  with  the  circumstance  of  their  mis- 
applying the  estate,  yet  he  will  (as  it  seems)  be  justified  in  perform- 
ing his  duty  in  faithfully  remitting  to  them  the  assets -collected  under 
his  authority  ;(d)  and  creditors  or  legatees  of  the  testator  have  no 
equity  to  make  him  responsible  for  so  much  "of  the  estate  as  he  trans- 
mitted to  the  executors  after  acquiring  such  knowledge. (e)  But  it 
is  conceived,  that  if  the  person  were  not  merely  such  agent  as  be- 
forementioned,  but  also  agent  to  the  executors,  in  their  private 
concerns,  and  he  made  advances  to  them  for  their  separate  use,  he 
would  not  be  permittee!  to  bring  those  loans  in  account  with  his 
agency  in  respect  to  the  testator's  assets,  so  as  to  charge  that  fund 
with  them  ;  since,  if  he  were  allowed  to  do  so,  it  would  be  enabling 
an  executor  to  accomplish  that  indirectly,  which  he  could  not  effect 
directly,  viz.  an  appropriation  of  the  estate  to  his  own  debt,  with 

(y)  See  Scott  v.  Tyler,  2  Dick.  725.    M'Leod  v.  Drummond,  14  Ves.  362.  17 
Ves.  155.     (z)  17  Ves.  156.     (c)  4  Mad.  359.     (A)  See  14  Ves.  356.  17  Ves.  156. 
(c)  17  Ves.  158.        (rf)  Keane  v.  Robarts,  4  Mad.  356,  359.        (e)  Ibid. 


312  Rights  of  Legatees,  [Cn.  VII. 

the  privity  and  contrivance  of  the  creditor.    It  would  be  converting 
the  union  of  the  two  agencies  into  an  engine  of  fraud. 

If  an  executor  be  not  permitted  to  sell  or  pledge  any  of  the  assets 
for  his  awn  debt,  to  the  prejudice  of  creditors  or  legatees  of  the  tes- 
tator, upon  the  ground  of  the  direct  notice,  which  the  transaction 
gives  the  alienee,  that  the  executor  is  not  dealing  with  him  as  ex- 
ecutor, it  is  requisite  to  consider  whether,  if  a  purchaser  or  mortgagee 
of  the  estate  know  the  executor  wastes  the  assets,  or  that  he  will 
misapply  the  produce  from  the  sale  or  mortgage,  such  notice  will 
except  the  transaction  out  of  the  general  power  of  the  executor  to 
dispose  of  the  testators  estate  *? 

The  criterion  by  which  all  questions  upon  the  present  subject  are 
to  be  examined,  is,  whether  the  person  dealing  with  the  executor 
for  the  testator's  assets,  can  be  charged  with  fraud,  which  implies 
collusion.(y)  The  testator  has  trusted  the  executor  with  the 
administration  of  his  estate  ;  and  the  law,  as  incident  and  neces- 
sary to  the  performance  of  that  duty,  has  empowered  the  executor 
to  dispose  of  the  assets  under  his  own  personal  responsibility.  If 
then  a  transaction  be  no  more  than  a  sale  or  pledge  of  part  of  the 
estate  of  money  advanced  at  the  time  ;  that  the  executor  intends  to 
misapply  it,  is  indifferent  to  the  alienee,  if  he  be  ignorant  of  that  in- 
tention ;  for  the  law  presumes  the  disposition  to  have  been  made 
for  the  purposes  for  which  it  gives  an  executor  the  power  of  sale  ;(#) 
and  there  is  no  obligation  upon  the  alienee  to  see  to  the  applica- 
tion of  the  money,  unless  he  have  notice  of  all  the  debts  having 
been  paid,  a  knowledge  which  he  is  not  bound  to  be  active  in  ac- 
quiring. Hence  it  is  presumed,  that,  although  a  person  have  notice, 
at  the  period  of  advancing  the  money  and  receiving  the  assets,  that 
the  executor  has  misapplied  part  of  the  general  estate,  that  fact  and 
notice  will  not  vitiate  the  transaction  ;  for  non  cdnstat  that  the 
money  may  not  be  wanted  and  may  not  be  applied,  notwithstanding 
the  prior  misconduct  of  the  executor,  in  payment  of  debts,  and  the 
alienee  is  entitled  to  trust  the  person  whom  the  testator  has  trusted. 
There  is  nothing  upon  the  face  of  the  transaction  importing  it  to  be 
inconsistent  with  the  duty  or  character  of  an  executor.  The  alienee 
has  substituted  an  equivalent  in  the  hands  of  the  executor,  in  lieu  of 
the  assets  received,  with  the  due  administration  of  which  he  has  no 
concern,  and  there  is  no  understanding  between  the  parties  that  the 
money  shall  not  be  applied  as  part  of  the  estate  of  the  testator.  (h) 
There  seems,  therefore,  in  such  cases  to  be  no  solid  ground  for  per- 
mitting creditors  or  legatees  of  the  testator  to  follow  the  assets  into 
the  possession  of  the  alienee.  But,  according  to  the  test  before  no- 
ticed, it  is  conceived  that  the  result  would  be  different,  if  the  alienee 
knew  at  the  time  of  the  transaction  that  his  money  was  to  be  appro- 
priated by  the  executor  for  purposes  of  his  own  ;  since  such  an  ap- 

lication  is  not  the  usual  mode  of  administering  the  estate,  it  bears 
the  impression  of  concert  and  collusion  between  the  parties  to  com- 
mit a  devastavit,  and  also  of  contrivance  to  injure  the  persons  inte- 
rested in  the  assets.  In  truth,  the  alienee  does  not  treat  with  the 
executor  in  the  character  of  executor,  so  that  the  power  of  disposi- 


r        '  C>  m     4  Tenn-  ReP>  625.  in  notis. 
(SO  17  Ves,  154.  fa  Ibid.-  163. 


SECT.  II.]  to  follow  the  Assets.  313 

tion  annexed  to  that  office  is  inapplicable  to  such  a  case.  For  these 
reasons,  it  is  presumed  that  a  transaction  so  circumstanced  would 
not  be  supported  against  creditors  or  legatees  under  the  testator's 
will  ;(i)  and  more  especially  if  the  alienee  has  notice  of  a  subsisting 
debt  due  from  the  testator. (k) 

It  was  observed  in  the  beginning  of  this  section,  that  the  principle 
upon  which  the  law  gave  to  the  executor  so  absolute  a  power  of  dis- 
position over  the  personal  assets,  was  necessity,  viz.  that  he  might 
not  be  impeded  in  converting  the  funds  into  money,  and  applying 
them  in  discharge  of  the  testator's  debts. (/)  For  the  same  reason, 
the  law  exempts  a  purchaser  or  mortgagee  of  the  assets  from  the 
obligation  of  seeing  his  money  applied  in  payment  of  the  debts,  or 
of  inquiring  whether  there  be  any ;  and  confines  the  responsibility, 
as  to  the  administration,  to  the  executor  alone,  as  the  testator  him- 
self had  done.  But  if  the  debts  be  paid,  and  the  alienee  had  notice 
of  the  circumstance  when  he  paid  his  money,  and  took  the  assets,  it 
is  presumed  (although  at  law  the  disposition  would  be  effectual^ 
that,  since  the  executor  is  only  a  trustee  for  the  purposes  mentioned 
in  the  will,  a  court  of  equity  would  require  the  alienee  to  see  that 
the  consideration  he  gave  for  the  property  was  applied  to  the  speci- 
fic trusts  declared  in  such  will,  upon  the  same  principle  that  it  ex- 
pects from  a  purchaser  of  a  trust  estate  to  see  his  money  appropriated 
in  satisfaction  of  the  particular  and  defined  trusts  contained  in,  or  in 
a  schedule  to,  the  instrument  in  which  they  are  enumerated. (m)  I 
have  found  no  express  decision  on  the  subject,  nor  any  thing  like 
authority  except  an  inconclusive  opinion  in  affirmance  of  the  above 
remarks  by  Sir  Joseph.  Jekyll  in  the  case  of  Ewer  v.  Corbet,(n)  in 
which  he  admitted,  "  that  if  an  executor  should  sell  a  term  to  a  per- 
son who  had  notice  that  there  were  no  debts,  or  that  all  the  debts 
were  paid,  such  a  case  might  require,  a  different  consideration," 
there  being  no  such  ingredient  in  that  before  him.  In  M'-Leod  v. 
Drummond,(o}  Lord  Eldon  refers  to  these  expressions  of  the  Master 
of  the  Rolls,  and  abstained  more  carefully  than  the  latter  from  giving 
any  opinion  upon  the  effect  of  such  notice. 

3.  When  the  dealing  between  executors  and  their  alienee  of  the 
assets  is  such  as  cannot  be  supported,,  the  right  of  the  testator's  cre- 
ditors or  legatees  to  follow  them,  may  be  barred  in  consequence  of 
their  omission  to  enforce  it  within  a  reasonable  time. 

Thus  in  Elliot  v.  Merriman,(p)  the  testator's  creditors  attempted 
to  follow  the  assets  into  the  hands  of  the  purchasers  from  the. ex- 
ecutor, after  an  undisturbed  possession  for  sixteen. years  ;  but  their 
bill  was  dismissed :  Lord  Hardivicke  observing,  that  length  of  time 
was  no.  favourable  circumstance  for  the  creditors,  since  had  they 
come  to  the  Court  recently  and  prevailed  against  the  purchasers, 
the  latter  might  have  had  satisfaction  against  the  vendor,  who,  in 
that  case,  although  he  had  then  become  a  bankrupt,  was  solvent  for 
some  years  after  the  sales. 

So  in  Bonney  v.  Ridgard,(q)  a  suit  by  legatees,  the  sale  was  made 

(f)  1  See  Cox,  148.     17  Ves.  156.  171.     2  Dick.  725. 

(k}  2  Vern.  616  and  ante,  pp.302,  303.     3  Atk.  240.     17  Ves.  161. 

(0  Ante,  p.  298,  (m)  Barnard.  Rep.  81.  (n)  2  P.  Will.  149. 

(o)  17  Ves.  162.     (/!)  2  Atk.  41.  Barnard.  Rep.  82.       (?)  1  Cox,  145.  148, 149 


314  The  Refunding  [Cn.  VII. 

in  the  year  1752,  and  the  testator's  youngest  child,  one  of  the  per- 
sons interested,  came  of  age  in  1764;  but  from  1752  till  the  com- 
mencement of  the  suit,  about  the  year  1780,  the  vendee  claiming 
under  the  executor,  had  been  in  peaceable  possession  of  the  estate ; 
so  that  the  same  number  of  years  elapsed  between  the  accruing  of 
the  right  and  its  exertion  as  in  the  last  case.  Lord  Kenyan,  M.  R. 
dismissed  the  bill,  on  account  of  the  negligence  of  the  plaintiff's  in 
not  earlier  prosecuting  their  claims. 

The  case  which  next  followed  was  Andrew  v.  Wrigley,(r]  in 
which  legatees  sought  to  recover  a  leasehold  estate,  bequeathed  to 
them,  which  had  been  mortgaged,  and  afterwards  sold  under  a  title 
derived  from  the  administratior  with  the  will  annexed.  The  claim 
in  respect  of  the  mortgagee  was  abandoned,  and  it  appeared  that 
from  the  year  1758  to  1779,  the  first  two  purchasers  had  been  in  pos- 
session of  the  property,  contrary  to  the  intention  of  the  will,  and  that 
in  the  latter  year  the  estate  was  again  sold  by  the  vendees  by  public 
auction,  at  which  sale  the  plaintiffs,  legatees,  gave  notice  of  their 
claims.  Lord  Mvanley  decided  two  points.  First,  that  after  an  ac- 
quiescence for  twenty-one  years,  the  legatees  could  not  have  reco- 
vered the  estate  from  the  first  two  purchasers ;  and  secondly,  that, 
as  the  last  vendee  bought  the  estate  from  the  persons  who  had  no 
knowledge  of  those  claims,  notice  of  them  to  him  was  of  no  conse- 
quence, since  he  was  entitled  to  protect  himself  under  the  want  of 
notice  in  those  persons  from  whom  he  derived  the  property  for  a 
valuable  consideration. (s) 

The  last  case  upon  the  present  subject  is  JlPLeod  v.  Drummond, 
first  decided  by  Sir  William  Grant,  and  finally  by  Lord  Eldon.  The 
case  consisted  of  a  variety  of  circumstances,  and  it  was  singular  in 
this  respect,  that  the  suit  was  by  two  executors  (who  'had  not  pre- 
viously interfered  in  the  administration)  against  pledgees  of  parts  of 
the  assets  by  the  other  two  and  sole  acting  executors,  for  the  private 
debt  of  the  latter.  No  persons  beneficially  interested  in  the  property 
under  the  will  were  before  the  Court.  The  testator  died  in  1786, 
and  the  bill  was  filed  in  1804.  In  1792  the  first  pledge  of  the  estate 
was  made,  and  afterwards  several  like  transactions  took  place  be- 
tween the  same  parties  up  to  the  year  1804;  during  the  whole  of 
which  period,  neither  the  plaintiffs,  nor  any  persons  interested  in 
the  deposits,  made  any  objections  to  those  dealings  with  the  estate. 
Under  those  circumstances,  both  Sir  William  Grant  and  Lord  Eldon 
determined,  that  the  titles  of  the  pledgees  could  not  be  shaken;  not 
by  the  plaintiffs  in  the  character  of  two  unoffending  executors,  be- 
cause they  were  hot  beneficially  interested,  and  never  interfered  in 
the  executorship  from  1786  to  1801,  nor  by  any  persons  interested 
for  themselves  or  others,  since  they  had  slept  upon  their  rights  during 
the  sam.e  period. (t) 

SECT.  III.  Of  the  refunding  of  Legacies. 

In  the  last  section  was  considered  the  right  of  legatees  to  follow 
the  assets  in  the  possession  of  strangers  under  titles  derived  from 
the  executor  by  .sales  or  pledges.  It  remains  to  consider  the  rights 
of  executors,  creditors,  and  unsatisfied  legatees,  to  call  back  parts  of 

(r)  4  Bro.  C.  C.  125.     («)  Ibid.  136.     (t)  14  Ves.  353.  359.  363.     17  Yes.  171. 


SECT.  III.]  of  Legacies.  315 

the  estate,  which  have  been  overpaid  to  one  or  more  of  the  legatees, 
by  reason  of  a  defect  of  assets.     And — 

1.  As  to  the  right  of  an  executor  to  oblige  a  legatee  to  refund. 
It  is  a  rule  in  equity,  to  presume,  when  an  executor  voluntarily 
pays  one  or  more  legacies  that  he  has  received  sufficient  assets  to 
discharge  all  the  rest;  and  although  the  fact  be  otherwise,  not  to 
admit  evidence  to  that  effect.  In  such  cases,  therefore,  the  execu- 
tor will  be  under  the  necessity  to  make  up  the  deficiency  with  his 
own  money,  since  a  court  of  equity  will  not  (except  in  the  instances 
after  mentioned)  permit  him  to  institute  proceedings  against  any  of 
the  legatees,  so  paid,  to  oblige  them  to  refund.  For,  it  being  the 
executor's  own  folly  to  make  such  payments  before  the  amount  of  the 
estate  .could  be  ascertained,  or  his  negligence  in  not  acquainting 
himself  with  its  amount,  when  that  information  might  have  been  ob- 
tained,(w)  neither  of  those  grounds  entitles  him  to  the  interference 
of  a  court  of  equity  to  be  relieved  against  such  his  acts  and  assents 
to  the  legacies. (x)  Upon  this  principle,  it  is  conceived  that  the 
above  rule  is  founded,  and  to  which  may  be  ascribed  the  following 
decision  : 

In  Coppin  v.  Coppin,(y)  A.  after  giving  several  considerable  le- 
gacies, appointed  his  brother  the  plaintiff,  executor  and  residuary 
legatee,  who  stated  in  his  bill,  that  he  had  paid  the  legatees  more 
than  the  assets  would  allow,  merely  upon  a  misrepresentation  of 
their  value,  the  estate  having  sustained  unexpected  losses ;  he  there- 
fore insisted  that,  if  by  importunity  or  from  kindness  to  several  of 
the  legatees  (who  were  his  relatives,)  he  had  paid  legacies  beyond 
the  assets,  such  over  payments  ought  to  be  refunded.  But  Lord 
King,  Ch.  was  of  a  contrary  opinion,  and  said  there  did  not  appear 
to  be  any  fraud  or  misrepresentation  by  the  legatees  to  whom  the 
payments  had  been  made;  there  being  on  the  other  hand,  much 
more  reason  to  consider  the  executor  to  be  better  informed  con- 
cerning the  testator's  circumstances  than  the  legatees ;  whom  there- 
fore his  Lordship  would  not  order  to  refund  in  such  a  suit. 

Sir  John  Strange,  M.  R.  expressed  himself  to  the  like  effect  in 
Orr  v.  Kaines,(z)  "  The  rule  (said  he)  is,  that,  whenever  an  ex- 
ecutor pays  a  legacy,  it  is  presumed  he  has  sufficient  to  pay  all  lega- 
cies, and  the  Court  will  oblige  him,  if  solvent,  to  pay  the  rest,  and 
not  permit  him  to  maintain  a  suit  to  compel  the  legatee  whom  he 
voluntarily  paid,  to  refund. 

So  in  Keylinge's  case, (a)  A.  after  giving  several  legacies,  ap- 
pointed B.  his  executor  and  residuary  legatee.  Great  part  of  the 
assets  consisted  of  East  India  stock,  which.  A.  directed  to  be  con- 
verted into  money  with  all  convenient  dispatch.  The  stock  bore  a 
good  price  at  ASs  death,  and  some  of  the  legatees  requiring  pay- 
ment of  their  legacies,  B.  gave  them  bonds  for  the  amounts,  under 
the  impression  that  the  estate  was  sufficient  to  pay  all  the  legacies. 
B.  kept  the  stock,  which  became  so  depreciated  in  value  as  to  cause 
a  deficiency  of  assets  fully  to  discharge  the  other  legacies.  In  con- 
sequence of  this  accident,  B.  instituted  the  suit  against  the  legatees 

(u)  2  Ves.  sen.  194.     (or)  2  Vcntr.  360.     1  Vern  94.     (y)  2  P.  Will.  292.  296. 
(z)  2  Ves.  sen.  194.  and  see  Newman  v.  Barton,  2  Vern.  205. 
(a)  Hil.  Term,  1702.  reported  1  Eq.  Ca,  Abr.  239.  pi.  25. 


316  The  Refunding  [Cn.  VII 

to  whom  he  had  given  bonds,  to  oblige  them  to  refund  and  abate, 
and  that  those  remaining  unpaid  might  take  their  legacies  propor- 
tionally at  the  then  price  of  the  stock.  But  the  Lord  Keeper  de- 
clined to  relieve  against  the  bonds,  and  ordered  B.  to  answer  for 
the  stock  at  its  value  at  the  expiration  of  a  year  after  the  testator's 
death. 

Since  payments  made  to  legatees  by  an  executor  under  the  cir- 
cumstances before  described  amount  to  a  devctstavit,  by  reason  of 
there  being  a  voluntary  and  improper  disposition  of  assets  to  the 
prejudice  of  other  legatees,  it  follows,  that  if  a  legatee  obtain  pay- 
ment of  his  legacy  by  compulsion,  as  by  a  decree  in  equity,  or  if 
just  debts  be  discovered  and  paid  by  the  executor  after  discharge  of 
some  of  the  legacies,  he  may  maintain  a  suit  to  oblige  those  legatees 
to  refund ;  for  it  is  clear,  that  in  neither  case  was  his  disposition  of 
the  assets  blameable,  so  as  to  charge  him  with  the  commission  of  a 
devastavit. 

Accordingly  in  Newman  v.  Barton,(b]  the  Court  distinguished 
between  the  voluntary  and  compulsory  payment  of  a  legacy  by  the 
executor ;  holding  that  he  could  not  oblige  the  legatee  to  refund  in 
the  first  instance,  but  that  he  was  entitled  to  do  so  in  the  second. 
Again — 

In  Nelthrop  v.  Biscoe,(c\  it  was  said,  and  admitted  by  the  Court, 
that  if  executors  pay  away  the  assets  in  legacies,  and  afterwards 
debts  appear,  and  they  be  obliged  to  discharge  them,  (of  which 
debts  they  had  no  notice  before  the  legacies  were  paid,)  the  ex- 
ecutors by  a  bill  might  compel  the  legatees  to  refund. 

So  also  in  another  case,(rf)  where  an  executor  filed  a  bill  against 
a  legatee  to  refund  a  legacy  voluntarily  paid  hirn  by  the  executor, 
the  assets  falling  short  to  satisfy  the  testator's  debts,  the  legatee 
was  ordered  to  refund ;  the  Court  declaring  that  an  executor  may 
institute  a  suit  against  a  legatee  to  refund  a  legacy  voluntarily  paid, 
as  well  as  a  creditor,  and  for  this  reason ;  an  executor  paying  a  debt 
of  the  testator  out  of  his  own  pocket  stands  in  the  creditor's  place, 
and  has  the  same  equity  against  a  legatee  to  compel  him  to  refund. 

2.  That  a  creditor  has  a  right  to  call  upon  legatees  to  refund  is  a 
proposition  which  cannot  be  doubted.    The  certainty  that  a  creditor 
has  such  a  privilege  was  declared  by  the  Court  of  Chancery,  in  Noel 
v.  Robinson,(e)  and  Newman  v.  Barton,(f)  and  was  acted  upon  in 
the  following  instance : 

A.  being  indebted  to  B.  appointed  C,  his  executor.  C.  wasted 
the  assets,  and  died,  having  bequeathed  several  legacies,  and  appoint- 
ed D.  his  executor,  who.  paid  those  legacies.  B.,  the  creditor  of  the 
first  testator,  commenced  a  suit  against  D.  for  the  payment  of  the 
debt,  and  also  against  the  legatees  of  the  second  testator,  who  was 
the  executor  of  the  first,  to  compel  them  to  refund,  there  not  being 
a  sufficiency  of  assets  of  the  first  testator.  And  the  Court  ordered 
the  legatees  to  refund. (g) 

3.  With  respe.ct  to  the  equity  of  one  legatee  to  make  another  re- 
fund, it  may  be  stated  as  a  general  rule,  that  an  unsatisfied  legatee 

(*)  2  Vern.  205.  .  (c)  1  Chan.  Ca.  135. 

(d)  Da-vta  v.  Davis,  8  Vin.  Abr.  "Devise," 423  pi.  35. 

W  l  Vern-  94-  •     (/)  2  Vern.  205.  ,(g)  Anon.  1  Vern.  162. 


SECT.  III.]  of  Legacies.  317 

cannot  maintain  a  suit  against  another,  who  has  been  paid  by  the  ex- 
ecutor; because  the  remedy  in  the  first  instance,  is  against  the  ex- 
ecutor ;(A)  who,  by  discharging  one  legacy,  has  admitted  assets  for 
the  payment  of  all. 

But  an  exception  to  this  rule  occurs,  when  the  executor  is  in  in- 
solvent circumstances ;  for  since  the  unsatisfied  legatee  can  have  no 
redress  against  him,  he  would  be  without  a  remedy,  unless  permit- 
ted to  call  upon  the  other  legatee  to  refund. (i)  Still  this  permission 
is  qualified,  and  subject  to  the  following  distinctions: 

If  the  assets  be  originally  sufficient  to  satisfy  all  the  legacies,  and 
one  of  the  legatees  procure  from  the  executor,  either  by  or  without 
suit,  payment  of  his  legacy ;  and  then  the  executor  wastes  the  estate, 
so  as  to  render  it  deficient  to  discharge  the  remaining  bequests,  those 
legatees  cannot  oblige  the  satisfied  legatee  to  refund:  1st.  because 
the  payment  was  not  a  devastavit  in  the  executor;  and  2dly,  because 
the  legatee  is  protected  by  the  principle,  that  vigilantibus,  non  dor- 
mientibus  jura  subveniunt.  But — 

If  the  assets  be  originally  deficient  to  answer  all  the  legacies,  and 
a  legatee  receive  from  the  executor  his  legacy  in  full ;  in  that  case, 
as  the  payment  was  a  devastavit  by  the  executor,  and  it  is  a  rule  in 
equity,  that  upon  a  deficiency  of  assets,  all  general  legatees  shall 
proportionally  abate,  the  Court  will  entertain  a  suit  by  the  unsatis- 
fied legatees,  to  compel  the  one  so  paid,  to  refund. 

The  distinctions  upon  the  present  subject  are  thus  stated  by  Sir 
Joseph  Jekyll,(k)  in  the  case  referred  to  in  the  note.  "  That  as  all 
the  legatees  are,  upon  a  deficiency  cf  assets,  to  be  paid  in  propor- 
tion, so,  if  the  executor  paid  one  of  them,  the  rest  should  make  him 
refund  in  proportion;  and  if  one  of  the  legatees  obtained  a  decree 
for  his  legacy,  and  was  paid,  and  afterwards  a  deficiency  happened, 
the  legatee  who  recovered  should  refund  notwithstanding,  in  imita- 
tion of  the  spiritual  court,  where  a  legatee  recovering  his  legacy  was 
made  to  give  security  to  refund  in  proportion.  But  that  if  the  ex- 
ecutor had  at  first  enough  to  pay  all  the  legacies,  and  afterwards  by 
his  wasting  the  assets  occasioned  the  deficiency ;  the  legatee,  who 
had  recovered  his  legacy,  should  not  be  compelled  to  refund,  but 
should  retain  the  advantage  of  his  legal  diligence,  which  the  other 
legatees  neglected,  in  not  bringing  their  bill  in  time,  before  the  de- 
vastavit of  the  executor ;  whereas,  if  they  had  commenced  their  suit 
before  the  commission  of  the  waste,  they  might  have  obtained  the 
same  success."  To  these  observations,  may  be  added  the  case  of — 

Walcott  v.  Hall,(l)  in  which  A.  was  entitled  to  a  legacy  of  501. 
payable  at  twenty-one,  or  marriage,  with  interest  in  the  intermediate 
period.  The  executor  proved  the  will;  and,  after  retaining  the  50Z. 
for  ./#.  when  he  attained  the  above  age,  or  married,  he  paid  the  sur- 
plus of  the  testator's  personal  estate  to  the  residuary  legatees,  as 
directed  by  the  will.  During  .#.'«  minority,  the  executor  became  a 
bankrupt,  and  obtained  his  certificate.  A.  having  attained  twenty- 
one,  filed  a  bill  against  the  executor  and  the  residuary  legatees  for 
the  legacy  of  50/.  insisting,  that  if  the  certificate  were  a  bar  to  his 

(A)  See  Mel  v.  Robinson,  1  Vem.  90  &  94.  Ed.  by  Raithby,  see  also  2  Ves. 
sen.  194.  (»)  2  Ves.  sen.  194. 

(£)  Anon.  1  P.  Will.  495.  and  see  1  Vern.  94.  (/)  2  Bro.  C.  C.  305. 

VOL.  I.  S  S 


118  The  Refunding  of  Legacies.  [Cn.  VII. 

demand  against  the  executor,  he  was  entitled  to  have  it  paid  by  the 
residuary  legatees.  The  Master  of  the  Rolls  having  decided,  that 
the  certificate  was  a  bar  to  the  claim  against  the  executor,  said,  the 
residuary  legatees  could  not  be  liable,  and  (as  reported)  that  if  they 
had  filed  a  bill  for  the  residue,  the  Court  would  have  ordered  it  to 
be  paid,  without  any  appropriation  of  the  legacy  of  501. ;  and  that 
the  residuary  legatees  had  received  no  more  than  what  they  were 
entitled  to. 

The  remarks  to  be  made  upon  the  last'  case  are  these :  that  since 
the  residuary  legatees  received  no  more  than  what  they  were  enti- 
tled to,  the  executor's  payment  was  perfectly  fair,  and  no  devastavit; 
which  circumstance,  together  with  the  original  sufficiency  of  the  as- 
sets to  satisfy  all  demands  upon  them,  took  away  all  equity  from  the 
particular  legatee  to  call  upon  the  residuary  legatees  to  answer  for 
the  executor's  misapplication  of  the  50Z.  And  with  respect  to  the 
observation  attributed  to  the  Matesr  of  the  Rolls,  by  Mr.  Brown,  viz. 
that  in  a  suit  by  the  residuary  legatees,  the  Court  would  have  order- 
ed payment  of  the  surplus  without  an  appropriation  of  the  particular 
legacy  its  accuracy  may  be  doubted ;  as  it  is  presumed,  that  the 
Court  would  have  taken  care  of  the  infant's  legacy  by  securing  it  in 
the  usual  manner. 

4.  The  remaining  subject  for  consideration  in  this  section  is, 
whether  in  instances  where  the  legatees  are  under  the  necessity  of 
refunding,  they  will  be  required  to  return  principal  only,  or  princi- 
pal with  interest? 

The  rule  applicable  to  this  sjubject  was  stated  by  Lord  Eldon  in 
Gittins  v.  Steele.(rri)  "  If  (said  his  Lordship)  a  legacy  have  been 
erroneously  paid  to  a  legatee,  who  has  no  farther  property  in  the 
estate  ;  in  recalling  that  payment,  I  apprehend  that  the  rule  of  the 
Court  is,  not  to  charge  interest ;  but  if  the  legatee  is  entitled  to 
another  fund  making  interest  in  the  hands  of  the  Court,  justice  must 
be  done  out  of  his  share." 

In  the  case  referred  to,(n)  a  legacy  of  7000J.  was  improperly  paid 
out  of  the  personal,  instead  of  the  real  estate,  the  latter  being  made 
primarily  liable  to  that  bequest  by  the  will.  The  legatee  wras  also 
one  of  the  three  residuary  legatees,  and  the  personal  estate  was  in 
the  hands  of  the  Court  of  Chancery,  producing  interest.  A  question 
arose  between  the  other  two  residuary  legatees  and  the  particular 
legatee,  whether  the  latter  (he  being  also  a  residuary  legatee)  should 
be  charged  with  interest  upon  the  7000/.  erroneously  taken  out  of 
the  personal  assets  9  And  Lord  Eldon  decided  in  the  affirmative, 
upon  the  distinction  before  stated. 

(m)  1  Swanst  200.  (n)  Ibid.  24.  199 


SECT.  I.]  Of  Lapsed  Legacies.  319 

CHAPTER  VIII. 

Of  Lapsed  Legacies. 

SECT.  I.  Of  the  lapse  of  an  individual  Legacy  by  the  death 
of  the  Legatee  during  the  life  of  the  Testator. 

1. —  When  the  bequest  lapses,  although  made  to  the 
legatee,  his  executors,  administrators,  or  personal 
representatives. 

2. — Of  the  admissibility  o/"parol  evidence  of  the  tes- 
tator's intention  that  the  executors,  administrators, 
or  personal  representatives  were  meant  to  take  if  the 
legatee  died  before  him. 

3. — Exceptions  to  the  rule  of  lapse,  when  the  legacy  is 
given  to  the  executors,  administrators,  or  personal 
representatives  of  the  legatee. 

SECT.  II.  Of  lapse  (where  the  person  named  in  the  will  is 
debtor  to  the  Testator)  depending  upon  the  cir- 
cumstance whether  the  benefit  be  given  as  a 
Legacy,  or  intended  in  the  nature  of  a  Release. 

SECT.  III.  Effect  of  the  death  of  Legatees  before  the  testator 
upon  the  interests  of  persons  in  remainder,  when 
the  Legacies  are  limited  over  upon  the  happen- 
ing of  particular  events. 

1. — Of  lapse,  when  a  legacy  is  given  for  a  particular 
purpose,  with  a  bequest  over,  if  the  legatee  die  before 
the  object  be  accomplished ;  but  he  lives  to  complete 
the  purpose,  and  dies  during  the  life  of  the  testator. 

2. — Of  lapse,  when  the  event  upon  which  a  legacy  is 
given  over  happens  in  the  testator's  life-time,  and 
the  legatee  dies  before  him. 

3. — Of  lapse,  when  the  legatee  dies  before  the.  testator, 
and  prior  to  the  event  happening  upon  which  the  lega- 
cy is  limited  to  another  person. 

SECT.  IV.  Of  lapse  of  Legacies  given  to  persons  in  JOINT- 
TENANCY,  or  as  TENANTS  IN  COMMON. 

1 . — In  joint-tenancy. 

2. — jls  tenants  in  common — and 

1. — When  given  to  children. 

2. —  When  with  a  limitation  over  to  survivors, — And 
3. — Of  lapse  of  accrued  shares. 

SECT.  V.  Of  lapsed  Legacies,  when  the  bequests  are  made 

under  POWERS. 
SECT.  VI.  Of  the  persons  entitled  to  lapsed  Interests. 

1. — When  the  subjects  are  general  legacies  or  personal 

residues. 

2. —  When  they  are  legacies  payable  out  of  lands,  or  the 
proceeds  of  lands  directed  to  be  sold. 


320  Of  Lapsed  Legacies*  [Cn.  VIII. 

SECT.  I.  Of  the  Lapse  of  an  individual   Legacy  by  the  death 
of  the  Legatee  during  the  life  of  the  Testator, — And — 

1.  WHEN  the  bequest  lapses,  although  made  to  the  executor  or 
administrators,  or  the  personal  representatives  of  the  legatee. 

No  rule  is  more  clearly  established  than  that  a  testamentary  dis- 
position must  lapse  by  the  death  of  a  legatee  during  the  life  of  the 
testator.  And  it  will  not  vary  the  rule,  although  the  bequest  be 
made  to  the  legatee,  his  executors  or  administrators ;  for  such  words 
are  of  no  importance,  inasmuch  as  those  persons  would  have  taken 
the  legacy  in  succession  and  by  representation,  if  it  had  vested  in 
the  legatee,  whether  expressly  named  by  the  testator  or  not ;  but 
since  the  legatee's  death  before  the  testator,  prevented  his  ever  tak- 
ing any  interest  in  the  bequest,  it  follows  that  his  executors  or  ad- 
ministrators can,  by  no  possibility,  make  a  title  to  that  which  never 
vested  in  the  testator.  This  is  the  principle  of  the  rule,  which 
equally  applies  to  devises  of  real,  as  to  bequests  of  personal  estate; 
so  that  if  lands  were  devised  to  A.  and  his  heirs,  and  he  died  before 
the  devisor,  leaving  an  heir  living  at  the  death  of  the  testator,  the 
heir  could  not  make  a  title  to  the  estate ;  because  he  was  intended 
to  take  it  in  succession  as  representative  of  the  devisee,  but  which 
was  impossible  from  the  accident  of  the  latter  dying  before  the  de- 
visor; an  event  that  prevented  the  devisee  taking  any  interest  in  the 
property  transmissible  to  his  heir. (a)  These  must  be  admitted  to 
be  hard  cases,  and  are  probably  contrary  to  the  intention  of  testa- 
tors; but  as  the  rule  is  clear,  a  court  of  equity  requires  an  equally 
manifest  intention  of  testators,  that  their  legal  representatives  were  not 
meant  to  take  by  representation,  but  as  purchasers  in  their  own  rights. 

A  leading  case   upon   this  subject  is  Elliot  v.  Davenport, (6)  in 
which  B.  being  indebted   to  Ji.  in  4001.  by  recognizance,  A.  be- 
queathed to  him,  his  executors,  administrators,  and  assigns,  the  4001. 
which  he  owed  her  (the  testatrix,)  with  all  interest  due  for  the  same; 
provided  he  paid  out  of  that  sum  several  legacies  to  his  children, 
amounting  to  about  150Z. ;  and  the  remainder  of  the  money  the  tes- 
tatrix gave  to  B.  his  executors,  administrators,  and  assigns.     The 
testatrix  desired  her  executors  not  to  claim  or  meddle  with  the  4001. 
but  freely  to  deliver  up  the  security  for  the  same  into  the  hands  of 
B.,  his  executors,  administrators,  and  assigns,  and  to  seal  and  exe- 
cute to  him  and  them  such  reasonable  releases  and  discharges,  and 
acknowledge  satisfaction  for  the  40Ql.  for  the  safety  of  B.  &c.,  as 
B.  &c.  should  think  proper.     B.  died  before  the  testatrix,  and  the 
plaintiff,  the  heir  of  B.,  filed  the  bill  against  the  executor  of  the  tes- 
tatrix to  be  discharged  from  the  recognizance ;  upon  which  a  ques- 
tion arose  concerning  so  much  of  the  4001.  as  was  given  to  B.,  viz. 
whether  it  was  not  a  lapsed  bequest.     And  Lord  Cowper  determined 
in  the  affirmative,  in  conformity  with  the  rule  before  stated;  and  he 
considered  the  direction  to  the  executors  to  deliver  up  the  security, 
&c.  to  the  legatee,  as  ancillary  to  the  bequest,  and  merely  legatory, 
and  therefore  insufficient  to  convert  the  case  into  an  exception  to  the 
general  rule. 

The  reporter  observes,  in  a  note  to  the  last  case,  that  the  opinion 
of  the  Master  of  the  Rolls  was  different  from  Lord  Cowper's  deci- 
(«)  Brett  v.  Rigden,  Plowd.  340.  (6)  i  p.  Will.  83. 


SECT.  I.]  Of  Lapsed  Legacies.  321 

sion,  and  that  Lord  Cowper  even  said  it  was  a  doubtful  case.  Yet 
it  would  seem,  for  the  reasons  before  detailed,  that  the  decree  is 
founded  upon  solid  principle;  and  its  authority  has  been  admitted 
by  subsequent  cases. (c) 

Since  then  a  legacy  to  A.,  his  executors  or  administrators,  will,  as 
we  have  seen,  lapse  by  his  death  before  the  testator,  so  will  a  lega- 
cy given  to  A.  and  his  personal  representatives;  for  in  each  case  the 
additional  words  are  unnecessary, (rf)  and  merely  express  what  the 
law  would  have  directed  if  the  testator  had  been  silent  on  the  sub- 
ject ;  viz.  that  if  A.  survive  the  testator  (an  event  which  the  gift  im- 
plies, since  no  testator  could  be  supposed  to  mean  to  give  to  any  but 
those  persons  who  shall  survive  him,)  and  afterwards  die  before  the 
legacy  becomes  payable,  his  personal  representative  shall  receive  it. 
Hence  it  appears  that  the  mere  naming  of  the  executors,  ad- 
ministrators, or  personal  representatives  of  A.  is  not  inconsistent  with 
the  rule  before  mentioned  respecting  the  lapse  of  legacies,  and  does 
not  unequivocally  show  the  testator's  intention  to  substitute  those 
persons  in  the  place  of  A.  in  the  event  of  ASs  death  before  him. 

The  rule  in  regard  to  lapse  will  equally  apply,  although  the  lega- 
cy be  not  immediate,  but  expectant  upon  a  life  interest,  and  the 
form  of  bequest  be  to  the  legatee,  or  his  executors  or  administrators, 
or  to  his  personal  representatives  ;  because  the  testator  may  have 
merely  intended  to  provide  against  the  death  of  the  legatee  between 
his  own  decease  and  that  of  the  tenant  for  life.  Since,  therefore, 
there  is  a  period  to  which  the  gift  to  the  executors  or  administrators 
or  personal  representatives  of  the  legatee  may  refer,  without  inter- 
fering with  a  lapse  in  the  event  of  his  death  before  the  testator,  the 
intention  on  the  part  of  the  latter  to  provide  against  that  contingen- 
cy, is  not  sufficiently  certain  to  counteract  the  general  rule  ;  so  that  if 
the  legatee  die  during  the  life  of  the  testator,  his  legacy  will  be  lost. 

This  point  was  determined  by  Lord  Alvanley  in  the  case  of  Cor- 
byn  v.  French,(e)  in  which  the  testator  gave  his  residuary  estate  to 
trustees,  to  place  at  interest,  and  directed  them  to  pay  that  interest 
to  his  wife  for  life,  and  at  her  death  2000Z.  (part  of  the  capital)  to  his 
niece  B.  "  or  to  her  proper  representative,"  if  she  should  not  be  liv- 
ing at  his  wife's  decease.  The  testator  also  gave  to  each  of  his  sis- 
ters' children  (naming  them)  "  or  their  representatives  or  representa- 
tive," 2000J.  (other  part  of  the  capital.)  John,  one  of  the  children, 
died  before  the  testator ;  and  the  question  was,  whether  his  legacy 
lapsed  or  belonged  to  his  representatives '?  And  Lord  Alvanley  de- 
termined it  was  lost  for  the  reasons  before  stated  ;  his  Honour  ob- 
serving, "  that  the  question  could  be  hardly  raised  upon  the  will ; 
for  (said  he)  look  at  the  preceding  legacy  to  B.  Would  it  not  have 
lapsed  if  she  had  died  before  the  testator  9  Beyond  all  question  it 
would  have  done  so.  It  is  nothing  more  thSn  saying  the  legacy  shall 
go  to  her  representatives  if  she  die  before  the  wife.  And  as  to  the 
other  legatees,  it  is  nothing  more  than  a  gift  to  them  at  the  wife's 
death,  which  was  only  intended  as  a  beneficial  interest  to  them,  and 
as  such  must  vest  in  them  before  it  could  be  transmissible.  It  is 

(c)  See  Tofilis  v.  Baker,  2  Cox,  122,  Pickering  v.  Lord  Stamford,  3  Ves.  493. 
Corbyn  v.  French,  4  Ves.  435.  Maybank  v.  Brooks,  1  Bro.  C.  C.  84.  Hutche- 
ton  v.  Hammond,  3  Bro.  C.  C.  129.  143.  (d)  4  Ves.  435. 

(e)  Ibid.  418.  435.  and  sezHutc/iesonv.  Hammond,  3  Bro.  C.  C.  129.  143.  S.  P. 


322  Of  Lapsed  Legacies.  [Cn.  VIII. 

perfectly  clear  that  where  the  fund  is  given  to  one  for  life,  and  after 
the  death  of  that  person  to  several  others,  and  in  case  of  their  death 
to  their  representatives,  there  is  no  reason  to  presume  an  intention  that 
it  shall  not  lapse  by  the  death  of  the  legatee  in  the  life  of  the  testator." 

Thus  in  Bone  v.  Cook,(f)  the  testatrix  devised  and  bequeathed 
the  general  residue  of  her  real  and  personal  estate  to  trustees,  in 
trust  to  sell  and  invest  the  produce  in  the  public  funds,  &c.  and 
pay  the  interest  to  Sarah  Jelly  for  life,  and  after  her  death  (as  to  one 
moiety)  to  pay  the  same  unto  and  between  the  two  children  of  Eli- 
zabeth Bone,  deceased,  equally ;  and  in  case  of  the  death  of  any  of 
the  said  legatees  before  their  legacies  should  become  payable,  then 
that  the  legacy  of  each  of  them  so  dying  should  go  to  and  be  paid 
amongst  his,  her,  or  their  children,  share  and  share  alike  ;  and  in  case 
of  such  decease  of  any  of  the  said  legatees  without  having  a  child 
or  children,  the  legacy  of  him  or  her  so  dying  should  go  to  his  or 
her  executors  or  administrators  as  part  of  his  or  her  personal  estate. 
One  of  the  children  of  Elizabeth  Bone  died  in  the  testatrix's  life- 
time, unmarried.  It  was  held,  that  the  legacy  of  such  child  lapsed  ; 
the  intervening  provision  (substituting  the  children  of  the  legatee) 
affording  no  reason  for  presuming  an  intention  that  the  legacy  should 
not  lapse. 

The  principle  of  the  last  cases  equally  applies  where  the  payment 
of  the  legacy  is  postponed  to  the  expiration  of  a  year,  or  of  a  longer 
period,  after  the  testator's  death ;  for,  in  such  instances,  the  substi- 
tution of  executors,  administrators,  or  personal  representatives  in  the 
places  of  the  legatees  may  be  intended  to  provide  against  the  death 
of  any  of  them  after  the  decease  of  the  testators,  and  before  they 
become  entitled  to  receive  the  legacies :  a  construction  quite  consis- 
tent with  the  rule  of  lapse  in  the  event  of  any  of  the  legatees  dying 
during  the  life  of  the  testators. 

It  follows,  therefore,  that  if  legacies  be  given  to  B.,  C.  and  Z).,  and 
directed  to  be  paid  to  them  or  to  their  several  executors,  or  adminis- 
trators, or  personal  representatives,  or  "  heirs,"  a  term  synonimous 
with  personal  representatives,  at  the  end  of  a  year  after  the  testator's 
death,  and  B.  die  before  the  testator,  the  legacy  intended  for  him 
will  be  lapsed. 

This  point  was  so  adjudged  in  the  case  of  Tidwell  v.  jlriel,(g)  in 
which  the  Court  acknowledged  the  principal  before  stated,  in  observ- 
ing, that  "payment  to  the  representative  at  the  end  of  a  year  after 
the  testator's  death,  if  the  legatee  be  not  then  living,  is  not  inconsis- 
tent with  a  personal  gift  to  the  legatee." 

2.  It  has  indeed  been  attempted  to  introduce  parol  evidence  of  the 
testator's  intention  to  substitute  the  executors  or  administrators  of 
the  legatee  in  his  place,  in  order  to  prevent  the  lapse  occasioned  by 
his  death  before  the  tesfetor.  But  the  Court  of  Chancery  rejected 
such  testimony. 

Accordingly,  in  Maybank  v.  Brooks, (h)  the  testator  (whose  father 
was  indebted  to  Maybank}  left  a  legacy  of  8501.  of  equal  amount 
with  the  debt,  to  'Maybank,  his  executors,  administrators,  or  assigns. 
At  the  time  of  the  gift  of  this  legacy,  Maybank  was  dead,  but  no 
notice  of  the  circumstance  was  taken  in  the  will.  The  personal  re- 

W  ;M'£lel<  Exch>  ReP'  168'     13  Price>  332.  and  see  Chap.  II.  s.  8. 
(#)  3  Mad.  404.  409.  (A)  i  firo.  C.  C.  84. 


SECT.  I.]  Of  Lapsed  Legacies.  323 

presentative  of  Maybank  filed  a  bill  for  the  legacy,  insisting  that 
the  words  "  his  executors,  administrators,  or  assigns,"  made  it  trans- 
missible ;  and  were  of  the  same  import  as  if  the  testator  had  said, 
"and  if  Maybank  shall  be  dead,  I  give  the  same  to  such  person  or 
persons  as  shall  be  executor,  administrator,  or  assign ;"  and  that  the 
testator  intended  the  legacy  to  go  to  Maybank's  family  in  payment 
to  him  of  the  debt  from  the  testator's  father.  To  establish  this  case, 
the  plaintiff  proposed  to  read  parol  evidence  of  the  testator's  know- 
ledge that  Maybank  was  dead,  and  of  his  intention  that  the  legacy 
should  go  to  his  representative.  But  Lord  Thurlow  rejected  it,  re- 
marking that  all  the  cases  of  the  admission  of  par.ol  evidence  were 
short  of  the  present ;  and  he  noticed  its  inefficacy,  if  received,  in 
saying,  "  the  only  fact  to  which  evidence  was  offered  appeared  to  be 
that  the  death  of  Maybank  was  within  the  knowledge  of  the  testator; 
#nd  in  order  to  show  his  intention  that  the  legacy  should  be  trans- 
missible, which  could  not  be  from  a  legatee  who  had  been  dead 
several  years."  Hence  it  appears,  that  whether  the  evidence  were 
admitted  or  not,  it  was  equally  useless  to  the  plaintiff.  The  legacy 
was  declared  to  be  lapsed  as  falling  within  the  rule  before  stated. 

3.  The  rule,  however,  like   all  others,  admits  of  exceptions,  but 
which  must  be  founded  upon  the  manifest  intention  of  testators,  that 
the  legacies  should  not  lapse  by  the  deaths  of  the  legatees  before 
them,  and  the  appointment  of  other  persons  to  take  the  legacies  upon 
.  the  happening  of  those  events  ;  for  Lord  Hardwicke  was  of  opinion, 
that  without  such  a  nomination,  intention  alone  would  be  insuffi- 
cient to  prevent  the  application  of  the  rule.     In  Sibley  v.  Cook,(i) 
his  Lordship  thus  expressed  himself:  "  If  a  man  devise  real  estate 
to  /.  S.  and  his  heirs,  and  signify  or  indicate  his  intention,  that  if/. 
S,  die  before  him  the  devise  should  not  lapse,  yet,  unless  he  nomi- 
nated another  devisee,  the  testator's  heir  is  not  excluded,  notwith- 
standing that  declaration :  so  in  the  gift  of  a  personal  legacy  to  A., 
although  the  testator  showed  an  intention  that  the  legacy  should  not 
lapse  if  A.  die  before  him,  yet  that  is  not  sufficient  to  exclude  the 
next  of  kin."      To  a  similar  effect  were  the  expressions  of  the  Lord 
Chief  Baron  of  the  Court  of  Exchequer,  in  the  case  of  Toplis  v.  Ba- 
ker, (k)     His  Lordship,  in  allusion  to  the  last  case,  and  that  of  Elliot 
v.  Davenport,  requiring  the  will  to  be  specially  penned  to  prevent  a 
lapse,  said,  "If  this  mean,  that  some  other  person  must  be  substitut- 
ed by  the  will  in  the  room  of  the  legatee  dying,  then  I  think  that  is 
a  clear  proposition  ;  but  I  doubt  whether  any  thing  else  will  do.    Put 
the  case  of  a  testator  saying,  'I  give  to  A.,  and  if  A.  shall  die  before 
me,  yet  I  do  not  mean  the  legacy  shall  lapse,'  I  do  not  know  how  to 
prevent  this  legacy  from  lapsing  ;  but  if  the  testator  had  said,  '  if  A. 
shall  die,  I  mean  his  executors  shall  take  it,'  then  I  understand  the 
effect  very  clearly  ;  the  executors  being   specially  mentioned,  and 
substituted  for  the  legatee." 

Upon  such  reasoning  as  the  above,  Lord  Hardwicke  determined 
the  case  of  Sibley  v.  Cook,(l)  in  which  A.  bequeathed  in  the  follow- 
ing words :  "  I  give  the  several  legacies  and  sums  following,  which 
I  will  shall  be  paid  to  the  several  persons  hereinafter  named,  and  if 
any  of  those  persons  die  before  the  same  become  due  and  payable,  I 

(0  3  Atk.  573.  (fr)  2  Cox,  121.  CO  3  Atk.  572. 


324  Of  Lapsed  Legacies.  [On.  VIII. 

will  that  they  or  any  of  them  shall  not  be  deemed  lapsed  legacies." 
The  testatrix  then  particularised  the  several  legatees,  and  proceeded 
thus :  to  Jinn  the  wife  of  R.  Wensley,  and  to  her  executors  or  ad- 
ministrators, I  give  the  sum  of  50Z."    Ann  died  before  the  testatrix, 
and  her  husband  administered  to  her.     The   question  was,  whether 
the   legacy  lapsed  in  consequence  of  that  accident*?     And  Lord 
Hardwicke  determined  in  the  negative,  and  said,  "  that  the  testatrix 
expressly  provided  against  a  lapse  if  Ann  died  before  her  ;  for  she 
says,  if  any  of  the  legatees  die  before  their  legacies  become  due  and 
payable,  I  will  that  they  or  any  of  them  shall  not  be  deemed  lapsed 
legacies.     And  subsequently  to  this  the  testatrix  bequeaths  to  Jinn, 
and  to  her  executors  and  administrators,  501.;  so  that  in  case  of  her 
death  before  the  testatrix,  other  persons  are  named  to  take." 

The  last  authority  may  seem  at  the  first  impression  to  militate  in 
principle  against  the  before  stated  case  of  Elliot  v.  Davenport,  but 
upon  more  mature  consideration,  their  seeming  inconsistency  may 
be  reconciled.  It  will  appear  from  an  attentive  perusal  of  Sibley  v. 
Cook,  that  the  testatrix  did  not  insert  the  terms  "  executors  or  ad- 
ministrators" as  usual  words  of  annexation,  but  descriptive  of  a  class 
of  persons  distinct  from  Ann  Wensley,  who  were  to  take  the  legacy 
upon  her  death  in  the  lifetime  of  the  testatrix.  For  the  testatrix  hav- 
ing expressly  declared  that  none  of  the  legacies  should  lapse,  pro- 
ceeded eodemflatuto  give  the  legacy  to  Jinn,  her  "  executors  or  ad- 
ministrators ;"  with  the  intention  of  substituting  them  in  Jinn's  place 
upon  the  happening  of  the  event  which  she  first  described.  But  in 
the  other  case,  as  also  that  of  Maybank  v.  Brooks,  before  stated(w) 
no  such  inference  of  intention  could  be  raised  from  any  expressions 
used  prior  or  subsequently  to  the  bequests  to  the  legatees  their  "  ex- 
ecutors or  administrators;"  which  latter^vords  seem  to  have  been  in- 
troduced without  any  particular  meaning,  and  purely  as  customary 
expressions. 

Consistent  with  the  decision  in  Sibley  v.  Cook  is  that  of  Bridge  v. 
Abbott, (n)  wherein  the  words  "  legal  representatives,"  were  used  in- 
stead of  "  executors  or  administrators."  In  that  case  the  testatrix 
bequeathed  the  residue  of  her  personal  estate  to  several  persons  in 
equal  shares,  "  but  in  case  of  the  death  of  any  of  them  before  her, 
she  directed  that  the  shares  of  those  dying  should  go  to,  be  had,  and 
received  by  his  or  her  legal  representatives"  One  of  the  legatees 
died  before  the  testatrix,  and  Lord  Alvanhy,  M.  R.  after  observing 
that  nothing  was  more  clear  than  that  a  testator  might  prevent  a  le- 
gacy from  lapsing,  and  the  necessity,  according  to  Sibley  v.  Cook, 
not  only  that  he  should  declare  the  legacy  should  not  lapse,  but  also 
who  should  take  in  the  place  of  the  legatee,  decreed  that  the  present 
bequest  did  not  lapse,  but  belonged  to  such  persons  as  were  the  next 
of  kin  to  the  residuary  legatee  at  the  death  of  the  testatrix. 

If  a  legacy  be  so  given  as  to  be  payable  at  the  testator's  death, 
the  period  of  a  receipt  not  being  expressly  postponed  by  him,  and  if 
the  form  of  bequest  be  to  the  legatee  or  his  personal  representatives, 
it  is  presumed  that  the  legacy  will  not  lapse  by  his  death  before  the 
testator,  and  for  these  reasons:  there  is  no  period  at  which  the  re- 
presentatives can  take,  as  intended  by  the  will,  except  in  consequence 
of  the  legatee  dying  in  the  lifetime  of  the  testator.  The  testator's 

(w)  Ante,  p.  322.  (n)  3  Bro.  C.  C.  224. 


SECT.  II.]  Of  Lapsed  Legacies.  325 

intention,  therefore,  in  naming  the  representatives  must  have  been  to 
guard  against  a  lapse  by  the  death  of  the  legatee  before  him.  The 
intent  is  as  manifest  as  if  actually  expressed ;  and  since  persons  are 
designated  to  take  the  legacy  upon  the  happening  of  that  contin- 
gency, there  is  an  union  of  the  two  circumstances,  which  (as  we 
have  seen)  are  required  and  are  sufficient  to  prevent  the  lapsing  of  a 
legacy.  In  Corbyn  v.  French,(o)  although  Lord  Mvanley  avoided  a 
decision  upon  the  question,  as  not  being  necessary,  it  may  probably 
be  inferred  from  his  expressions,  that  his  opinion  was  in  favour  of 
the  rights  of  the  representative.  The  same  observation  applies  to 
the  language  of  Wright,  J.  in  Stone  v.  Evans,(p)  but  in  Tidwell  v. 
*flriel,(q)  the  Court  was  more  explicit  in  declaring  its  opinion  in  fa- 
vour of  the  representative. 

Another  exception  to  the  general  rule  applicable  to  lapses,  is 
where  the  legacy  is  given  to  a  trustee  for  another  person ;  for  if  the 
bequest  were  made  to  B.  in  trust  for  C.,  and  B.  died  before  the  tes- 
tator, leaving  C.  who  survived  the  testator,  the  trustees'  death  would 
not  be  permitted  to  prejudice  C.,  but  C.  would  be  entitled  to  the 
legacy.  And  the  equity  is  the  same,  although  the  trust  be  not  dis- 
tinctly expressed,  but  is  created  by  construction  of  law. 

Thus,  in  Bales  v.  England,(r)  the  testatrix  gave  to  B.  300Z.  with  a 
declaration  of  her  will,  that  "  B.  should  give  the  300/.  to  his  daugh- 
ter C.  at  his  death  or  sooner,  if  there  were  occasion  for  her  better 
preferment."  B.  died  before  the  testatrix,  when  C.  survived;  and 
the  question  was,  whether  the  legacy  lapsed  *?  The  Court  declared, 
that  by  the  effect  of  the  above  form  of  bequest,  B.  was  a  trustee  for 
C.  whose  interest  could  not  be  affected  by  the  death  of  the  former 
during  the  life  of  the  testatrix.  And  the  bequest  was  compared  to 
one  made  in  the  following  terms,  viz.  to  B.  for  life,  then  to  C.  in 
which  case  C.'s  title  could  not  be  disputed. 

So  also  it  will  be  if  lands  or  personal  estate  be  devised  to  B. 
charged  with  a  legacy  to  C'.,  for  although  B.  died  before  the  testa- 
tor, an  event  by  which  the  bequest  is  lapsed,  so  far  as  B.  is  concern- 
ed, yet  the  charge  in  favour  of  C.  will  be  supported  in  a  court  of 
equity. 

An  instance  of  this  kind  occurred  in  the  case  of  Wigg  v.  Wigg,(s] 
in  which  the  testator  Wigg  devised  real  estate  to  his  second  son 
Thomas,  upon  condition  that  he  or  his  heirs  paid  to  the  testator's 
six  grandchildren  90Z.  in  equal  shares,  to  whom  were  given  powers 
of  entry  and  distress  in  case  of  non-payment.  Thomas  died  before 
the  testator,  and  consequently  the  devise  of  the  land  lapsed.  But 
the  question  was,  whether  the  charge  of  90/.  nevertheless  subsisted  *? 
And  Lord  Hardwicke  decided  in  the  affirmative,  and  directed  the 
estate  to  be  sold  to  raise  the  money  for  the  legatees. 

SECT.  II.  Of  Lapse,  (where  the  person  named  in  the  will  is 
debtor  to  the  testator,)  depending  upon  the  circumstance, 
whether  the  benefit  be  given  as  a  legacy,  or  intended  in  the 
nature  of  a  release. 


fo)  4  Ves.  435.  (/*)  2  Atk.  87.  (?)  3  Mad.  409. 

(r)  Pre.  Ch.  200.  and  see  Mag-bridge  v.  Thc."kwell,  1  Ves.  jun.  465.  475. 
(s)  1  Atk.  382.  and  see  Oke  v.  'Heath,  1  Ves.  sen.  135.  141.  stated  infra. 
VOL.  I.  T    t 


326  Of  Lapsed  Legacies.  [Cn.  VIII. 

With  respect  to  the  doctrine  of  lapsed  bequests,  a  distinction 
prevails  when  the  bequest  is  intended  to  operate  in  the  nature  of  a 
release,  or  in  extinguishment  of  a  debt,  and  when  as  a  mere  legacy. 
In  the  latter  case  we  have  seen,  from  the  authorities  before  produc- 
ed, that  in  general  the  legatee's  death,  during  the  life  of  the  testator, 
will  defeat  the  bequest,  but  in  the  former  a  court  of  equity  will  carry 
into  effect  the  testator's  intention  against  all  persons  except  credi- 
tors.^) It  follows  from  this  distinction  between  a  legacy  and  a  tes- 
tamentary act  in  the  nature  of  a  release,  that  in  order  to  decide 
whether  the  will  be  a  discharge  to  a  debtor-legatee's  estate,  al- 
though he  die  in  the  testator's  lifetime,  it  is  necessary  to  ascertain 
whether  the  benefit  was  meant  as  a  legacy,  or  a  mere  direction  to 
the  executor  to  deliver  up  the  security  or  to  cancel  the  obligation, 
or  whether  it  amounts  to  a  declaration  by  the  testator  of  his  inten- 
tion that  the  debts  should  not  be  claimed  from  his  debtor  personally, 
or  from  his  estate.  For  if  the  benefit  appear  to  be  intended  as  a 
legacy,  personal  to  the  debtor,  and  the  direction  as  to  the  delivery 
of  the  security  is  merely  ancillary  to  that  legacy,  the  death  of  the 
debtor  before  the  testator  will  occasion  a  lapse,  and  the  debt  will  be 
recoverable  by  the  testator's  executors.  But  if,  on  the  contrary,  the 
testator  merely  treat  the  debt  as  subsisting,  and  do  not  purport  to 
bequeath  or  give  it  to  the  debtor,  but  uses  words  of  forgiveness  or 
remission,  it  will  be  presumed  that  the  testator  meant  in  all  events 
to  cancel  the  obligation  ;  an  intention  which  will  be  effectuated  by 
a  court  of  equity,  and  which  the  death  of  the  testator  will  not  be 
permitted  to  disappoint. 

Of  the  FIRST  distinction,  the  case  of  Elliot  v.  Davenport,  before 
stated(w)  is  an  instance,  for  there  the  debt  of  400/.  was  expressly 
bequeathed  to  the  debtor,  charged  with  a  legacy  of  150/.  and  the 
testator  did  not  intend  the  security  to  be  delivered  up  under  the 
general  direction,  until  the  1501.  were  paid.  Such  delivery  there- 
fore, and  remission  of  the  debt  was  not  distinct  from,  but  ancillary 
to,  the  bequest  of  it  before  made. 

The  case  of  Toplis  v.  Baker(x]  next  followed,  in  which  the  testa- 
tor gave  to  one  Draper  4001.  that  the  latter  owed  him  upon  a  mort- 
gage. He  then  ordered  his  executor  "  to  give  up  to  Draper  all 
bonds  owing  from  him  to  the  testator,  and  which  should  be  found  in 
the  testator's  possession  at  his  death,  with  all  interest  due  thereon." 
It  appeared  that  Draper  had  executed  a  bond  as  a  collateral  security, 
and  was  also  indebted  to  the  testator  by  another  bond,  though  it 
seems  that  the  Court's  attention  was  solely  drawn  to  the  bond  and 
mortgage,  which  formed  one  security.  Draper  died  before  the  tes- 
tator, and  the  question  was,  whether  this  was  a  lapsed  bequest  *? 
The  Court  of  exchequer  determined  in  the  affirmative,  upon  the 
ground,  that  the  benefit  intended  for  Draper  operated  as  a  legacy 
by  the  word  "give,"  and  that  such  was  the  intention  appeared  from 
the  direction  to  the  executor  as  to  delivering  up  the  bonds,  which 
was  to  be  to  Draper  personally.  So  that  Draper's  interest  being 
purely  testamentary  and  personal,  and  the  order  for  delivery  of 
the  bonds  being  consequential  and  ancillary  to  the  bequest,  the 

01'  *' and chap>  XVI1' sect>  4<      (M)  Ante> p<  m 


SECT.  III.]  Of  Lapsed  Legacies.  327 

Court  considered  the  case  the  same  in  substance  with  Elliot  v.  Da- 
venport,(y)  and  therefore  made  a  similar  decree. 

Of  the  SECOND  distinction,  the  case  of  Sibthorp  v.  Maxom(z)  is  an 
example.  The  testatrix  bequeathed  in  the  following  terms  :  "  I  for- 
give my  son-in-law  Chillingivorth  a  debt  of  500/.  due  to  me  upon 
bond,  and  all  interest  that  shall  be  due  from  the  same  at  my  decease, 
and  desire  my  executor  to  deliver  up  the  bond  to  be  cancelled." 
The  legatee  died  before  the  testatrix,  and  the  question  was,  whether, 
under  the  above  form  of  bequest,  the  debt  was  subsisting,  although 
Chillingworth  died  before  the  devisor  *?  Lord  Hardwicke  decided 
that  the  debt  was  discharged  according  to  the  distinctions  before 
stated. 

The  remarks  which  occur  upon  perusal  of  the  last  case  are  these; 
that  the  whole  testamentary  clause  is  one  of  remission  and  not  of 
gift.  It  is  neither  more  nor  less  than  an  intended  release  or  extin- 
guishment of  the  debt,  at  all  events.  In  the  same  sentence  that  the 
debt  is  forgiven,  the  security  is  directed  to  be  delivered  up ;  and 
not  to  the  debtor  personally,  but  the  surrender  was  to  be  made  ge- 
nerally, so  that  his  representative  was  within  the  terms  of  the  order. 

It  was  in  fact,  a  plain  declaration,  that  neither  the  debtor  nor  his 
estate  should  ever  be  called  upon  to  pay,  nor  the  estate  of  the  tes- 
tator receive  the  money  due  from  the  former  to  the  latter.  Lord 
Hardwicke,  in  his  judgment,  marks  the  differences  between  this  and 
the  case  of  Elliot  v.  Davenport,  in  the  following  terms : 

"  In  Elliot  v.  Davenport,  the  words  are  not  penned  as  forgiveness 
or  remission.  There  was  no  intention  to  release  the  recognizance, 
until  B.  paid  150Z.  out  of  the  money  secured  by  it;  but  here  is  a 
clear  intention  to  release  the  debt.  There  it  was  to  be  delivered 
up  to  B.  here  in  general,  to  be  cancelled.  There,  the  right  of  ac- 
tion subsisted,  which  was  the  reason  of  that  opinion ;  here,  it  would 
be  too  nice  to  make  such  a  distinction,  which  would  too  much  cir- 
cumscribe the  bounty  that  was  intended  by  the  testatrix  for  her 
family."  His  Lordship  also  observed,  that,  "  had  it  been  said  in 
Elliot  v.  Davenport,  '  I  forgive  my  son  such  a  debt,'  and  the  bond 
had  been  ordered  to  be  delivered  up  by  the  executor  to  be  can- 
celled; it  would  have  been  held  a  discharge;  and  that  there  was 
nothing  personal  in  the  present  case,  in  the  direction  that  the  bond 
should  be  delivered  up  to  be  cancelled. "(a) 

SECT.  III.  Effect  of  the  death  of  legatees  before  the  testator, 
upon  the  interests  of  persons  in  remainder,  when  the  le- 
gacies are  limited  over  upon  the  happening  of  particular 
events. 

In  treating  upon  the  effect  of  a  legatee's  death  before  the  testator, 
on  the  interest  of  persons  in  remainder,  it  is  proposed  to  consider 
the  subject — 

1.  Of  lapse,  when  a  legacy  is  given  for  a  particular  purpose,  with 
a  bequest  over,  if  the  legatee  die  before  the  object  is  completed, 
but  he  lives  to  accomplish  the  purpose,  and  therr  dies  during  the 
life  of  the  testator. 

It  it  settled,  that  conditional  limitations  are  never  to  be  extended 

(y)  Ante,  p.  320.  (z)  3  Atk,  580.  (a)  See  2  Cox's  Rep.  121. 


328  Of  Lapsed  Legacies.  [Cn.  VIII. 

beyond  AVjiat  is  absolutely  necessary  from  the  context  of  the  will. 
It  is  a  consequence  of  this  doctrine,  that  if  a  legacy  be  given  to  A. 
to  defray  the  expense  of  building  a  house,  which  Jl.  intends  to  erect 
at  B.,  and  in  the  event  of  •#.'«  death,  before  the  house  be  built,  the 
legacy  is  given  to  C.,  if  Jl.  complete  the  building,  and  die  during 
the  life  of  the  testator,  C.  cannot  claim  the  bequest,  because  the 
legacy  was  only  given  to  him  if  Jl.  died  before  the  building  of  the 
house,  a  contingency  which  did  not  happen.  The  legacy  there- 
fore lapses  by  the  death  of  Jl.  in  'the  lifetime  of  the  testator. 

The  case  of  Humberstone  v.  Stanton,(b)  was  decided  upon  this 
principle.  The  testator  bequeathed  to  trustees  750/.  three  per  cent 
bank  annuities,  for  his  wife  for  life,  with  a  direction  to  sell  the 
fractional  50J.  to  place  out  his  son  Joseph  an  apprentice.  He  then 
gave  450Z.  of  the  annuities,  or  4001.  (if  the  50/.  had  been  applied 
as  above)  after  his  wife's  death  to  Joseph,  upon  completing  his  ap- 
prenticeship. The  intermediate  dividends  to  be  applied  for  his 
support  and  clothing,  until  his  service  expired.  But  if  Joseph  died 
before  the  completion  of  his  apprenticeship,  he  gave  the  annuities 
to  his  other  children  nominatim,  or  to  such  of  them  as  should  be 
living  when  the  contingency  happened.  After  the  date  of  this  will, 
the  testator  placed  Joseph  an  apprentice  ;  who,  having  completed 
the  necessary  term  of  service,  died  before  the  testator.  The  ques- 
tion was,  whether  the  legacy  lapsed,  or  belonged  to  the  other  chil- 
dren under  the  executory  limitation1?  And  Sir  William  Grant,  M. 
R.  determined  that  as  the  legacy  was  disposed  of  in  the  event  only 
of  Joseph's  death,  before  finishing  his  apprenticeship,  the  substi- 
tuted limitation  was  disappointed,  and  a  lapse  necessarily  ensued 
by  the  death  of  Joseph  before  the  testator. 

2.  The  principle  of  the  last  determination  applies  to  all  those 
cases  in  which  distinct  legacies,  (c)  are  given  over  upon  events 
which  happen  during  the  testator's  life,  and  the  persons  to  whom 
the  bequests  are  first  made,  die  before  the  testator.  For  since  the 
executory  limitations  are  made  expressly  to  depend  upon  the  not 
happening  of  the  events  described  :  if  they  occur  while  the  legatees 
live,  and  they  die  either  before  or  after  the  testator,  it  is  clear  from 
the  terms  of  the  will,  that  the  executory  limitations  cannot  take 
place;  the  contingencies  upon  which  they  were  to  arise  never  hav- 
ing had  existence.  The  testator's  intention  may  sometimes  be  de- 
feated by  the  construction,  but  it  is  his  own  fault  as  quod  voluit  non 
dixit  ;  and  it  is  more  eligible  that  a  private  inconvenience  should 
be  tolerated,  than  a  certain  known  rule  of  construction  be  infringed, 
and  a  court  of  justice  assume  the  power,  on  mere  conjecture,  to 
make  a  codicil  to  the  will.  In  these  cases,  therefore,  the  legacies 
lapse.  In  illustration  of  these  remarks,  we  shall  produce  two  in- 
stances where  the  happening,  in  the  testator's  lifetime,  of  the  events 
in  which  the  legacies  were  given,  occasioned  those  legacies  to  lapse 
by  the  deaths  of  the  legatees  before  the  testators,  notwithstanding 
the  executory  bequests  of  the  legacies  to  other  persons. 

In  Calthorpe'v.  Gough,(d)  10,0001.  were  bequeathed  in  trust  for 
the  separate  use  of  Lady  Gough,  and  if  she  died  before  her  husband, 


\  YeS>  £  ^a>  385<      (0  S66  sect  4-  "Joint  tenancy,"  p.  330.  in  exception 
3  Bro.  C.  C.  395.  note.     1  Ves.  &  Bea.  389. 


SECT.  III.]  Of  Lapsed  Legacies.  329 

then  according  to  her  appointment;  and  if  she  made  none,  the 
money  was  to  go  among  her  children,  but  if  she  survived  her  husband 
the  whole  was  to  belong  to  her.  The  event  in  which  the  children 
were  to  take  did  not  happen ;  that  in  which  she  was  to  take  abso- 
lutely occurred,  but  she  died  during  the  life  of  the  testator.  And 
it  was  decided  that  the  legacy  lapsed. 

So  also  in  Doo  v.  Brebant.,(e)  a  legacy  was  given  in  trust  for 
Sarah  Counsell  until  she  attained  the  age  of  twenty-one,  with  a  di- 
rection for  the  transfer  of  it  to  her  at  that  time ;  but,  in  case  she  died 
under  twenty-one,  leaving  children,  then  in  trust  for  them,  and  if  she 
died  under  that  age  without  leaving  a  child  or  children,  or,  there 
being  any,  if  all  of  them  died  under  twenty-one,  the  legacy  was 
given  to  other  persons.  Sarah  attained  the  age  of  twenty-one,  mar- 
ried, and  had  children  ;  but  she  died  before  the  testatrix,  leaving  two 
infant  children.  It  appears  from  Mr.  Brown's  report  of  the  case, 
that  Lord  Thurlow  disapproved  of  the  last,  and  inclined  to  the  opi- 
nion, that  upon  the  principle  of  Jones  v.  Westcomb,(f)  and  other 
cases  of  that  class,  the  children  should  be  permitted  to  take ;  but  he 
sent  a  case  to  the  Court  of  King's  Bench,  which  held  with  great 
clearness,  that  the  children  could  not  take  any  thing.  On  which 
occasion  Lord  Kenyon  said,  "  if  this  event  had  occurred  to  the  tes- 
tatrix, most  probably  she  would  have  provided  for  it,  and  given  the 
money  to  the  grand-children  ;  but  as  she  has  not  done  so,  we  cannot 
make  a  will  for  her."  The  legacy  therefore  lapsed,  and  in  conse- 
quence of  the  opinion  of  the  court  of  law  the  Lords  Commissioners 
of  the  Great  Seal  afterwards  dismissed  the  bill  of  the  children 
claiming  the  legacy. (g) 

In  the  cases  just  discussed,  the  lapse  was  occasioned  by  the 
deaths  of  the  legatees  in  the  lifetime  of  testators,  where  the  events 
upon  which  the  legacies  were  given  happened  during  the  joint  lives 
of  the  legatees  and  of  the  testators  ;  and  which  would  have  entitled 
the  former  to  the  bequests  absolutely,  had  they  survived  the  latter. 
It  remains  to  consider, 

3.  Whether,  if  the  events  upon  which  the  legacies  were  limited 
over  had  not  happened  during  the  lives  of  the  legatees,  those  lega- 
cies would  lapse  to  the  prejudice  of  the  persons  in  remainder,  by 
the  deaths  of  the  legatees  before  the  testators  9  But  since  the  cases 
determined  upon  the  subject  have  been  generally  on  questions  be- 
tween tenants  in  common,  founded  on  limitations  to  the  survivors 
in  the  event  of  any  of  them  dying  under  the  age  of  twenty-one,  the 
reader  is  referred  to  the  next  section.  Suffice  it  to  remark  in  this 
place,  that  it  seems  formerly  to  have  been  a  question  whether  a  be- 
quest over  in  case  of  the  death  of  the  legatee  before  the  arrival  of  a 
certain  time,  could  take  effect  when  he  died  during  the  testator's 
life,  although  before  the  period  specified.  It  is,  however,  now  set- 
tled, that  in  such  a  case  the  bequest  over  is  effectual,  and  no  lapse 
occasioned  by  such  a  death.  So  that  if  a  legacy  were  given  to  A. 
payable  at  twenty-one,  and  if  he  died  under  that  age,  then  to  B. ; 


(e)  3  Bro.  C.  C.  393.     4  Term.  Rep.  706.     1  Ves.  &  Bea.  389. 
(/)  Pre.  Ch.  316. 

(5-)  Seethe  next  section  under  "Joint  tenancy,"  and  Chap.  XIII.  sect.  1.  also 
Doe  v.  Shififihard,  Dougl.  75.     Williams  v.  Jones,  1  Russ.  517. 


330  Of  Lapsed,  Legacies.  [Cn.  VIII. 

should  -.'I-  die  before  twenty-one  in  the  lifetime-of  the  testator,  the 
legacy  would  not  lapse,  but  B.  would  be  entitled  to  it.(A)  The 
principle  is  obvious.  The  event  upon  which  the  executory  limita- 
tion was  to  take  place  has  happened,  i.  e.  the  death  of  */2.  under 
twenty-one.  That  death  was  not  required  to  be  after  the  demise 
of  the  testator,  so  that  a  death  at  any  period  before  twenty  is  within 
the  terms  of  the  will,  and  doubtless  according  to  the  intention  of  the 
testator. 

Having  in  the  preceding  sections  treated  of  the  lapses  of  legacies 
given  to  persons  singly  and  individually,  the  subjects  proposed  to  be 
next  considered  are, — 

SECT.   IV.   Of  Lapses,  when  Legacies  are  given  in  Joint 
tenancy,  or  in  Tenancy  in  common.     And 

1.  Of  bequests  in  joint  tenancy. 

If  a  legacy  be  given  to  two  persons  jointly,  although  one  of  them 
happen  to  die  before  the  testator,  or  notwithstanding  the  testator 
revoke  the  interest  originally  intended  to  be  given  to  either  of  them; 
such  interest  will  not  be  considered  lapsed  or  undisposed  of,  but 
will  survive  to  the  other  legatee.  This  exception  to  the  general 
rule  relating  to  lapsed  legacies,  originates  in  the  nature  of  the  in- 
terest which  joint  legatees  have  in  the  fund  ;  for  they  do  not  take  it 
per  mis  only,  like  tenants  in  common, (i)  but  per  mis  et  per  tout. 
With  this  agrees  the  observation  of  Bfidgman,  Ch.  J.  in  Davis  v. 
Kemp,(k)  "  that  each  is  a  taker  of  the  whole,  but  not  solely ;  for 
the  whote  is  devised  to  both,  and  not  a  moiety  to  each."  If  then 
upon  any  event  one  of  the  two  legatees  be  deprived  of  taking  the 
benefit  intended  for  him,  the  interest  of  his  companion,  which  ex- 
tended per  tout,  and  was  undivided,  becomes  absolute  in  the  whole 
fund. 

In  Bujfar  v.  Bradford(l)  the  testator  gave  four  of  eight  parts  of 
his  residuary  personal  estate  "  to  his  niece  Bujfar,  and  the  children 
born  of  her  body."  The  niece  had  no  child  when  the  will  Avas  made, 
but  one  (the  plaintiff)  was  afterwards  born,  and  during  the  life  of  the 
testator,  and  the  niece  died  before  the  testator.  Lord  Hardwicke 
determined  that  the  niece  and  child  would  have  taken  in  joint  ten- 
ancy had  the  former  lived,  but  as  she  died  in  the  testator's  lifetime 
her  child  should  take  the  whole. 

So  in  the  case  of  Humphrey  v.  Tayleur, (m)  A.  bequeathed  the  re- 
sidue of  her  real  and  personal  estate  to  Tayleur  and  Wauchope, 
whom  she  appointed  executors.  A.  afterwards,  by  a  codicil,  revoked 
the  nomination  of  the  latter  as  executor,  and  what  was  given  to 
him  by  the  will.  Lord  Hardwicke  decided  the  effect  of  revocation 
to  be,  to  give  the  whole  residue  to  Tayleur  ;  upon  the  principle  that 
he  and  Wauchope  would  have  taken  the  fund  as  joint  tenants  by 
the  words  of  the  will,  if  the  bequest  to  Wauchope  had  not  been  re- 
pealed Again — 

In  Lov'set  v.  Sweet,(ri)  the  testator  gave  100Z.  part  of  a  mortgage 
debt,  to  the  son  and  daughter  of  William  Wicker.  Wicker  had  four 

(A)  2  Vcrn.  207.  611.  IP.  Will.  274.  2  P.  Will  529.  3 P.  Will.  113.    Walker 

v.  Main,  1  Jac.  &  Walk.  1. 

(i)  3  Ves.  &  Bea.  54.  (£)  Garth.  3.  (/)  2  Atk.  220. 

(m)  Ambl.  136.  (n)  Ambl.  175. 


SECT.  VI.]  Of  Lapsed  Legacies.  331 

sons  and  one  daughter.  None  of  the  sons  being  able  to  take,  from 
the  uncertainty  of  the  one  intended,  Lord  Hardwicke  decreed  the 
whole  legacy  to  the  daughter,  observing,  that  it  was  a  joint  devise, 
and  in  such  a  case,  by  whatever  cause  it  happened  that  one  of  the 
joint  tenants  could  not  take,  the  other  should  have  the  whole. 

And  in  Morly  v.  Bird,(o)  the  testator  bequeathed  to  the  four 
daughters  of  his  brother  Collins  4001.  out  of  seven,  then  lying  in 
the  three  per  cent  consols.  Three  of  the  daughters  died  before  the 
testator,  and  Lord  Mvanley,  M.  R.  declared  the  4001.  belonged  to 
the  surviving  child. 

Since  then  legacies  given  to  two  or  more  in  joint  tenancy  will,  on 
the  death  of  any  of  them  in  the  testator's  lifetime,  survive  to  the 
other  legatees,  where  the  terms  of  the  bequest  proceed  no  farther 
than  to  give  the  joint  interests  ;  it  may  be  asked,  whether,  if  a  tes- 
tator add  to  the  gift  a  declaration,  that  if  any  of  the  joint  legatees 
die  under  twenty-one,  their  legacies  shall  go  to  the  survivors,  and 
one  of  them  after  attaining  that  age  die  before  the  testator,  his  in- 
terest will  lapse  and  not  go  over  *?  In  the  instance  of  an  individual 
legatee  with  a  limitation  over  to  another  person,  if  he  die  before 
twenty-one,  it  has  been  shown  that  his  death  before  the  testator  after 
attaining  that  age,  occasions  a  lapse  of  the  legacy. (p)  But  in  the 
present  case,  as  the  legatees  are  intended  to  be  joint^tenants,  a  cha- 
racter which  would  entitl  ethe  survivors  to  the  whole  fund,  if  no  limi- 
tation over  had  been  inserted,  it  is  presumed,  that  as  such  limita- 
tion cannot  take  effect  upon  the  event  described,  the  rights  of  the 
legatees  are  restored  to  the  same  state  as  they  would  have  been  in 
had  no  such  executory  bequest  been  introduced  into  the  will ;  and, 
therefore,  since  the  survivors  would  have  taken  the  whole  legacy, 
although  any  of  them  died  before  the  testator,  whatever  might  be 
the  age  of  the  legatee,  so  in  this  case  they  will  be  equally  entitled, 
although  the  legatee  died  after  attaining  twenty-one. 

In  instances  where  executors  take  the  residue  in  the  character  of 
executors,  or  by  a  joint  bequest,  they  do  so  in  joint  tenancy. (</)  Con- 
sequently, if  one  or  more  of  them  die  before  the  testator,  the  survi- 
vors will  be  entitled  to  the  whole  property,  for  the  reasons  before 
detailed. 

Thus  in  Frewen  v.  Relfe,(r)  the  persons  whom  the  testatrix,  after 
various  changes,  ultimately  appointed  her  executors,  were  M.  Berry, 
M.  Barham,  L.  Relfe,  P.  Frewen,  and  H.  Benge,  and  no  disposition 
was  made  of  the  residue.  The  two  first  named  executors  died  before 
the  testatrix,  and  Lord  TJwrlow  determined  that  the  survivors  were 
entitled  to  the  whole  of  the  fund. 

2.  With  respect  to  legacies  given  to  persons  as  tenants  in  common. 

1.  It  is  a  rule  when  distinct  legacies  are  given  to  individuals,  or 
an  aggregate  fund  is  directed  to  be  divided  among  them,  nominatim 
in  equal  shares,  their  interests  are  several ;  and  if  any  of  them  die 
before  the  testator,  what  was  intended  for  those  legatees  will  lapse 
into  the  residue  ;  because  the  others  have  no  interest  in  the  benefits 
intended  for  the  deceased  legatees,  each  legatee  being  solely  enti- 

(o)  3  Ves,  628.  631.  (/*)  Ante,  p.  328. 

(V)  2  P.  Will.  247.  529.     2  Br6.  C.  C.  25.     9  Ves,  204.  598. 
(r)  2  Bro.  C.  C.  220.    See  chap.  XXIV.  sect.  2.  sub-sect.  9. 


332  Of  Lapsed  Legacies.  [CH.  VIII. 

tied  to  his  own  legacy  or  proportional  share.  In  this  consists  the 
distinction  between  tenants  in  common  and  joint-tenants,  and  hence 
ari<e  the  different  results  in  regard  to  lapse.  In  the  one  case  (as  we 
have  seen)  the  death  of  one  joint  tenant  before  the  testator  will  not 
occasion  a  lapse  ;  but  in  the  other,  that  accident  will  defeat  the  le- 
gacy, or  the  share,  of  the  deceased  in  the  aggregate  fund. 

Accordingly  in  Man  v.  J\lan,(s)  the  testator,  after  giving  his  per- 
sonal estate  to  his  wife  for  life  or  during  widowhood,  bequeathed  it 
to  .#.,  B.,  C.  and  D.  his  brothers  and  sisters,  in  equal  shares.  13. 
and  C.  died  before  the  testator,  and  it  was  determined  by  Sir  Joseph 
Jekyll  that  those  two  shares  lapsed. 

So  in  Bagwell  v.  Dry(t)  the  residuary  personal  estate  of  a  testator 
was  given  to  four  persons,  share  and  share  alike.  One  of  them  died 
during  the  testator's  life,  and  Lord  Macdesfield  held,  that  the  pro- 
portion of  the  deceased  legatee  was  undisposed  of.  Again — 

In  Page  v.  Page,(u]  the  bequest  of  the  residue  was  made  to  six 
persons,  "  to.  each  of  them  a  sixth  part."  One  of  whom  having  died 
before  the  testator,  Lord  King  decided  that  his  share  was  lapsed. 

Also  in  Owen  v.  Owen,(x)  a  testatrix  gave  the  surplus  of  her  estate 
to  her  nieces  Mary  and  Elizabeth,  daughters  of  Mr.  and  Mrs.  Owen, 
in  equal  shares.  One  of  the  nieces  died  before  the  testatrix,  and 
Lord  Hardwicke  determined  that  her  share  was  undisposed  of. 

The  last  case  was  followed  by  Peat  v.  Chapman,(y)  in  which  a 
similar  decision  was  made  by  the  Master  of  the  Rolls. 

And  in  Jlckroyd  v.  Smithson,(z)  the  testator,  after  giving  distinct 
legacies' to  a  number  of  persons,  also  gave  them  his  residuary  estate 
(consisting  of  personal  property,  and  the  produce  from  the  sale  of  his 
real  estate)  "  in  proportion  to  their  several  and  respective  legacies 
therein  to  them  bequeathed."  Two  of  those  legatees  died  before 
the  testator,  and  their  legacies  and  shares  of  residue  were  determin- 
ed by  Lord  Thurtow  to  have  lapsed  for  the  benefit  of  the  heir  and 
next  of  kin  of  the  testator. 

The  rule  relating  to  interests  lapsed  by  the  deaths  of  legatees 
during  the  life  of  the  testator,  equally  applies  to  cases  where  a  tes- 
tator revokes  by  codicil  the  benefit  intended  for  one  tenant  in  com- 
mon, and  makes  no  other  disposition  of  it.  And  although  he  con- 
firms the  will,  still  the  other  tenants  in  common  cannot  make  a  title 
to  the  revoked  share ;  because  by  the  wiH  they  took  no  interest  in 
such  share,  but  only  in  their  own  several  proportions ;  therefore, 
since  the  confirmation  of  the  will  had  no  other  effect,  than  to  make 
it  speak  from  the  date  of  the  codicil,  no  new  estate  or  interest  hav- 
ing been  given  to  other  tenants  in  common,  it  necessarily  follows, 
that,  as  they,  neither  under  the  will  or  codicil,  can  take  the  revoked 
interest,  it  is  undisposed  of,  and  falls  into  the  residue.  In  order  to 
exemplify  this  proposition — 

Suppose  a  testator  having  children  to  give  his  residuary  estate 
among  two  of  his  sons  and  one  daughter,  as  tenants  in  common,  and 
afterwards  to  add  a  codicil  revoking  the  residuary  bequests  to  his 
daughter,  but  confirming  his  will  in  all  other  respects.  Notwith- 

(«)  2  Stra.  905.  -          (*)  1  P.  Will.  700.  («)  2  P.  Will.  489. 

f*)  1  Atk.  494.     (y)  1  Ves.  sen.  542.  infra,  Chap.  XXIV.  sect.  2  sub-sect.  9. 

(z)  1  Bro.C.  C.  503. 


SECT.  IV.]  Of  Lapsed  Legacies.  333 

standing  this  act  of  confirmation,  the  daughter's  proportion  of  the 
residue  would  be  lapsed  for  the  reasons  before  mentioned.  So  it 
was  determined  by  Lord  Northington  in  Cheslyn  v.  Cresswell,  and 
by  the  House  of  Lords  on  appeal  from  his  decree. (a)  It  appears 
from  the  report  of  the  arguments  of  counsel,  that  this  was  the  point 
upon  which  the  decision  in  the  House  of  Lords  was  founded,  al- 
though it  be  observable  from  the  same  report  that  the  daughter  died 
before  the  testator. 

1.  A  distinction  however  must  be  noticed  between  cases  where 
a  legacy  is  given  to  a  class  of  persons  in  general  terms  as  tenants  in 
common,  as  to  the  children  of  B  ,  and  those  instances  in  which  it 
appears  upon  the  face  of  the  .will  that  particular  objects  at  the  date 
of  it  were  intended  to  take  the  property.     In  the  latter  we  have  seen 
that  the  death  of  one  of  the  legatees  before  the  testator,  or  a  revo- 
cation of  the  bequest  to  him,  will  occasion  a  lapse,  but  it  is  not  so 
in  the  other,  since  it  is  presumed  that  those  persons  of  the  described 
class,  who  should  survive  the  testator,  were  the  only  objects  of  his 
bounty ;  so  that  if  an  individual  answering  the  description  of  the  be- 
quest, and  who,  if  living  at  the  death  of  the  testator,  would  have 
been  entitled  to  participate  in  the   gift,  happen  to  die  before  him, 
that  event  will  not,  upon  the  foundation  of  the  above  presumption, 
occasion  a  lapse  of  any  part  of  the  fund ;  but  those  persons,  answer- 
ing the  description  at  the  period  of  the  testator's  death,  will  be  en- 
titled to  the  whole  of  it.     This  will  be  illustrated  by  the  following 
case  : 

In  Joiner  v.  Francis,(b)  the  testator  gave  "  to  the  children  of  his 
late  sister  Mary  Crowson  2000Z.  to  be  equally  divided  among  them." 
His  residuary  estate  he  bequeathed  in  thirds,  one.  third  to  his  brother, 
another  third  to  his  sister  Martha,  and  the  remaining  third  he  gave 
"to  the  children. of  his  late  sister  Mary  Croivson,  equally  to  be  di- 
vided between  the  children  of  his  brother  S.  Wiggington,  his  sister 
Martha,  and  the  children  of  his  late  sister  Mary  Crowson"  When 
the  will  was  made  Mary  Crowson  had  three  children,  John,  Eliza- 
beth, and  William,  but  William  died  before  the  testator,  and  it  was 
contended  that  one-third  of  a  third  of  the  2000Z.  and  of  the  residue 
bequeathed  to  the  children  of  Mary  Crowson,  lapsed  into  the  resi- 
due by  the  death  of-  William  in  the  life  of  the  testator.  But  the 
Court  declared  the  contrary,  and  that  those  children  of  Mary  living 
at  the  testator's  death  were  entitled  to  the  2000/.  and  the  third  of 
the  residue. 

A  case  indeed  of  Martin  v.  Wilson,(c]  is  a  decision  contrary  to 
that  of  Viner  v.  Francis,  which  was  not  mentioned  or  referred  to. 
But  upon  principle  it  is  conceived  that  the  latter  would  be  followed 
in  preference  to  the  former.  The  one  prevents  a  lapse  without  doing 
violence  to  the  testator's  intention  or  the  expressions  in  his  will ; 
whilst  the  other  produces  a  lapse,  by  entertaining  a  construction 
neither  required  by  the  description  in  the  will,  nor  the  clear  inten- 
tion of  the  testator. 

2.  Another  exception  to  the  rule  of  lapsing,  in  consequence  of 
one  the  legatees  dying  before  the  testator,  occurs  when  there  is  a 

3  Bro.  Parl.  Ca.  246.  8vo.  ed.     2  Eden."  123.  5.  C. 

2  Cox,  190.     2  Bro.  C.  C.  658.  S.  C.        (c)  3  Bro.  C.  C.  325.  Ed.  by  Belt. 

VOL.   I.  U    U 


334  Of  Lapsed  Legacies.  [Cn.  VIII. 

limitation  over  of  the  legacy  to  the  survivors  generally,  or  upon  the 
death  of  any  of  them  under  the  age  of  twenty-one.  In  such  in- 
stances, it  is  settled  that  the  limitation  to  survivors  shall  have  effect 
during  the  continuance  of  the  testator's  life;  so  that,  in  the  first  case, 
if  a  legatee  tenant  in  common  die  before  the  devisor,  or  if  in  the  se- 
cond, the  legatee  die  in  the  testator's  lifetime  before  attaining  twen- 
ty-one, or  the  happening  of  the  event  upon  which  the  limitation  over 
is  made  to  depend,  the  legacy  will  not  lapse,  but  go  to  the  survivors 
under  the  express  provision  in  the  will. 

Of  the  FIRST  proposition  the  resolution  or  assent  of  the  Court  in 
the  case  of  Northey  v.  Burbage,(d]  is  an  example.  .#.  bequeathed 
5001.  a  piece  to  his  grandchildren  B.  and  C.  and  if  either  of  them 
died  his  share  was  to  go  to  the  survivor.  B.  died  before  the  testator, 
yet  it  was  held  that  his  share  did  not  lapse  but  went  to  the  other 
grandchild. 

So  in  Smith  v.  Pybus,(e]  Lady  Fletcher  bequeathed  a  personal 
annuity  after  the  death  of  her  father,  to  be  equally  divided  between 
her  brother  and  sisters  Charles  and  Catharine  Pybus,  and  Martha 
Briggs,  "  to  them  and  their  heirs  or  the  survivors  of  them,  in  the 
order  they  are  now  mentioned."  Martha  died  before  the  testatrix, 
and  Sir  William  Grant,  M.  R.  determined  the  bequest  to  be  of  a 
perpetual  annuity,  over  which  the  surviving  legatees  had  an  absolute 
power  of  disposition;  and  that  Martha's  intended  share  went  over 
to  her  brother  and  sister  under  the  limitation  to  the  survivor.  And 
his  Honour  rejected  the  words,  "  in  the  order  they  are  now  mention- 
ed," as  unintelligible  and  inconsistent  with  the  previous  clear  ex- 
pressions in  the  will. 

Of  the  SECOND  proposition,  the  following  authorities  are  instances: 

In  Miller  v.  Warreh,(f)  the  testator  gave  to  the  four  children  of 
H.  Miller  15001.  a  piece  (naming  them,)  to  be  paid  to  sons  at  twenty- 
one  and  to  daughters  at  eighteen  or  marriage ;  and  if  one  or  more 
of  them  died  before  their  legacies  became  due  the  same  were  to  go 
to,  and  be  divided  among,  the  surviving  legatees.  Mary,  one  of  the 
four  children  died  during  the  life  of  the  testator,  and  it  is  presumed 
before  attaining  her  age  of  eighteen  or  being  married.  The  ques- 
tion was,  whether  the  1500J.  intended  for  her  lapsed,  or  went  to  the 
surviving  children  9  And  it  was  decreed  that  the  survivors  were  en- 
titled to  it,  the  Court  declaring,  that  should  a  legacy  be  given  to  A. 
at  twenty-one,  and  if  he  died  before  that  period  then  to  B.t  although 
A.  died  during  the  life  of  the  testator,  yet  the  legacy  should  go  to  B. 

Also  in  Ledsome  v.  Hickman,(g)  the  defendant's  testator  gave 
300Z.  a  piece  to  .#.,  B.  and  C.  at  twenty-one  or  marriage,  and  if  any 
died  before,  then  to  the  survivor.  B.  died  in  the  testator's  lifetime. 
The  question  was,  whether  the  300Z.  lapsed,  or  went  over  to  A.  and 
C.?  And  it  was  decreed  in  their  favour.  Again — 

In  Perkins  v.  Micklethwaite,(h)  one  Micklethwaite  having  two 
sons,  Thomas  and  Joseph,  and  also  two  daughters,  bequeathed 
15001  to  his  younger  son  Joseph,  and  WOOL  to  each  of  his  two 
daughters ;  and  directed  that  if  any  of  his  three  younger  children 

(d)  Pre.  Ch.  470.   and  see  Barker  v.  Giles,  2  P.  Will  280.     3  Bro.  Parl.  Ca. 
104  8vo.  ed.  (e)  9  Ves.  566. 

(/)  2  Vern.  207.  (g)  2  Vern.  611.  (A)  1  P.  Will.  274. 


SECT.  IV.]  Of  Lapsed  Legacies.  335 

died  before  twenty-one  or  marriage,  his  or  her  portion  should  go  to 
the  survivors,  and  he  gave  his  real  estate  to  the  eldest  son  charged 
with  those  portions.  One  of  the  daughters  died  under  age  and  be- 
fore marriage,  and  then  Joseph  died  under  twenty-one  and  unmarried, 
in  the  lifetime  of  his  father,  the  testator,  who  lived  to  have  another 
son  whom  he  named  Joseph,  upon  which  occasion  he  made  a  codicil 
and  confirmed  his  will,  noticing  that  since  the  making  of  his  will 
another  son  was  born  to  him,  and  he  therefore  gave  500J.  a  piece  to 
his  son  Joseph  and  his  surviving  daughter,  over  and  above  what  he 
had  given  them  by  his  will.  It  being  objected  that  by  the  death  of 
the  first  Joseph  the  portion  of  1500/.  intended  for  him  lapsed.  Lord 
Cowper,  Ch.  said,  it  was  improper  to  call  it  a  lapsed  legacy,  because 
it  was  a  portion  given  over,  and  should  take  effect ;  that  the  codicil 
was  a  republication  of  the  will,  and  amounted  to  a  substitution  of  the 
second  Joseph  in  the  place  of  the  first,  as  if  the  testator  had  made 
his  will  anew,  and  had  written  it  over  again,  by  which  new  will  the 
second  Joseph  must  take ;  and  that  the  fixed  intention  of  the  testa- 
tor appeared  to  be  that  Joseph  should  have  more  than  his  daughter, 
whereas  if  the  legacy  of  1500Z.  should  be  taken  to  be  lapsed  the 
d  aughter  would  have  twice  as  much  as  Joseph. 

The  last  case  was  followed  by  Willing  v.  Baine,(i)  in  which  A. 
bequeathed  2001.  a  piece  to  his  children,  payable  at  twenty-one,  and 
if  any  of  them  died  before  that  age,  then  his  legacy  was  to  go  to  the 
surviving  children.  One  of  the  children  died  in  .4.'s  lifetime,  and 
upon  a  question  whether  such  child's  legacy  lapsed  or  belonged  to 
the  survivors,  it  was  resolved  by  Lord  King,  Ch.,  that  although  the 
legacy  lapsed  quoad,  the  deceased  legatee,  it  was  nevertheless  well 
given  over  to  the  surviving  children. 

The  principle  of  the  last  authorities  was  adopted  by  Lord  Thurlow 
in  Rheeder  v.  Ower.(k)  In  that  case,  the  testator,  Mitchell,  directed 
his  trustees  to  invest  his  residuary  estate  in  the  funds,  and  to  pay  the 
dividends  to  his  five  sisters  (naming  them)  in  equal  shares,  during 
their  lives,  for  their  sole  use  and  benefit ;  and  if  any  of  them  died 
leaving  issue,  then  the  trustees  were  "to  pay  and  transfer  the  share 
of  the  residue  (to  which  his  sister  so  dying,  was  entitled  at  or  before 
her  decease,  to  receive  the  dividends  thereon)  unto  and  among  all 
such  children,  or  to  such  child  of  his  deceased  sister,  equally  at  their 
ages  of  twenty-one."  One  of  the  testator's  sisters,  named  'Jinn 
Holdgate,  died  before  him  leaving  children,  the  plantiffs,  Rheeder 
and  Jennings,  who  attained  twenty-one,  and  claimed  one-fifth  of  the 
residue,  notwithstanding  the  words  of  the  bequest  to  children,  seem- 
ed to  exclude  those  of  sisters  dying  during  his  life ;  and  against  the 
claim  it  was  alleged,  that  in  order  to.  enable  children  to  take  under 
the  will,  they  must  be  of  such  sisters  as  would  be  entitled  to  receive 
the  dividends  for  their  lives,  which  a  sister  dying  before  the  testator 
was  not.  But  Lord  Thurlow  thought  that  the  plaintiffs  were  entitled 
to  the  share  of  their  mother,  as  an  executory  devise;  and  that  in  a 
will  so  loosely  drawn,  it  was  more  probable  that  such  was  the  testa- 
tor's intention  than  the  contrary. 

The  cases  which  have  been  produced  clearly  establish,  that  when 
legacies  are  given  to  persons  as  tenants  in  common,  with  a  limitation 

(i)  3  P.  Will.  113.  (£)  3  Bro.  C.  C.  240. 


336  Of  Lapsed  Legacies.  [Cn.  VIII. 

to  the  survivors,  upon  the  death  of  any  of  them  under  twenty-one,  if 
any  of  those  persons  happen  to  die  under  that  age  before  the  testator, 
his  legacy  will  not  lapse,  but  survive  to  his  companions,  from  the 
effect  of  the  will.  The  result,  however,  would  be  different,  if  the 
legatee's  death  had  taken  place  after  he  attained  twenty-one,  for  the 
reasons  and  upon  the  authorities  mentioned  in  the  last  section. (I) 

3.  Instances  indeed  may  occur,  where  legacies  are  given  to  per- 
sons as  tenants  in  common,  with  an  executory  bequest  to  the  survi- 
vors, that  if  two  or  more  of  the  legatees  shall  die  before  the  testator ; 
so  that  it  may  be  necessary  to  consider,  whether  the  original  shares 
only,  or  the  accrued  as  well  as  the  original  shares  passed  to  the  sur- 
viving legatees.  But  it  is  settled,  that  where  distinct  legacies  are 
given  to  individuals  in  common,  with  a  limitation  to  the  survivors, 
the  original,  and  not  the  accrued  legacies,  will  pass  to  the  other 
legatees;  consequently,  the  latter  legacies  will  lapse  by  the  death 
of  the  legatees,  who  would  have  been  entitled  to  them,  in  the  life- 
time of  the  testator.  Questions  of-this  nature  depend  upon  the  suf- 
ficiency of  the  words  made  use  of  by  the  testators  to  embrace  ac- 
crued legacies  or  shares  of  accrued  legacies  ;  and  it  has  been  decid- 
ed, that  the  term  "  portion,"  or  "  share,"  will  not  include  them. 

Accordingly,  in  Perkins  v.  Micklethwaite,(m)  distinct  legacies 
were  given  by  the  father  to  his  youngest  son  and  two  daughters; 
but  if  any  of  them  died  before  twenty-one  or  marriage,  his  or  her 
portion  was  to  go  to  the  survivors.  A  daughter  died  unmarried,  and 
a  minor;  and  then  the  son  died  under  twenty-one,  and  without 
being  married.  It  was  one  of  the  questions,  whether,  upon  the  son's 
death,  the  part  of  his  sister's  legacy,  to  which  he  would  have  been 
entitled,  if  he  had  outlived  the  testator,  passed  with  his  original  le- 
gacy to  the  surviving  daughter?  •  And  Lord  Harcourt,  Ch.  deter- 
mined in  the  negative,  because  there  were  riot  words  sufficient  to 
pass  the  accrued  share. 

In  ex-parte  West,(n]  Lord  Thurlow  expressed  an  opinion,  that  the 
word  "  share,"  would  not  pass  an  accrued  interest  under  a  limitation 
to  survivors;  and  that  opinion  was  confirmed  by  the  decree  of  Lord 
Kenyon,  M.  R.  in  the  same  matter,  in  a  suit  instituted  for  the  pur- 
pose of  obtaining  the  solemn  decision  of  the  Court  upon  the 
question. 

An  exception  to  this  rule  of  the  lapsing  of  accrued  interests,  has 
been  determined  to  exist,  where  the  legacies  are  not  distinct ;  but 
an  aggregate  fund  is  bequeathed  to  persons  in  common,  with  a  limi- 
tation to  survivors,  and  the  testator's  intention  appeared  from  his  ex- 
pressions, to  preserve  the  property  in  an  aggregate  state  throughout 
his  dispositions  of  it.  The  general  rule  is  disapproved  of,  as  in  most 
instances,  defeating  the  intention  of  testators ;  but  a  court  of  equity 
considers  itself  bound  to  follow  it  to  the  extent  of  its  establishment. 
In  the  present  instance,  BuUer,  J.  considered  the  rule  to  be  inappli- 
cable, and  decided  according  to  that  impression. 

The  case  alluded  to  is  Worlidgev.  Churchill,(o)  in  which  Edward 
JVorlidge  devised  to  trustees  all  his  real  and  personal  estates,  in 

(/)  Ante,  p.  327.  etseg.  (m)  i  p.  Will.  274.  stated  supra,  p.  334. 

(n)  1  Bro.  C.  C.  575.  E<*.  by  Belt,  and  see  Forrest.  124.  3  Atk.  79.  2  Ves. 
jun.  534.  5  Ves.' 465.  (0)  3  Bro.  C.  C.  465. 


SECT.  V.]  Of  Lapsed  Legacies.  337 

trust,  to  sell  the  former,  and  invest  the  clear  surplus,  and  his  personal 
estate,  in  the  funds  for  the  benefit  of  his  four  children,  Rosalba,  the 
plaintiff,  Edward,  Ililliam,  and  John  Worlidge,  to  be  equally  di- 
vided amongst  them  at  twenty-one  ;  but  if  any  died  before  that  age, 
his  or  their  share  or  shares  were  to  go  to  the  survivors  or  survivor. 
The  testator  also  directed  his  trustees  to  apply  the  interest  of  such 
trust  money  during  the  minorities  of  the  legatees,  for  their  support 
and  education  ;  and,  if  more  than  sufficient  for  that  purpose,  the 
surplus  was  to  be  invested  for  their  mutual  benefit.  And  if  all  of 
them  died  under  twenty-one,  before  Mary  Worlidge  (to  whom  he 
had  given  an  annuity)  the  interest  of  the  trust  money  was  to  be  paid 
to  her.  And  after  the  decease  of  all,  he  gave  the  trust  money  to 
other  persons.  John  first  died  a  minor,  as  is  presumed,  before  the 
testator;  and  William  and  Rosalba  died  under  twenty-one,  after 
surviving  the  testator,  leaving  their  brother  the  plaintiff,  Edward, 
who,  as  the  survivor,  claimed  the  whole  fund,  consisting  as  well  of 
accrued  as  of  original  shares.  And  Buller,  J.  decided  in  favour  of 
the  claim  ;  first,  'because  the  present  bequests  were  not  given  as  dis- 
tinct legacies,  but  as  an  aggregate  fund ;  and  secondly,  in  conse- 
quence of  the  testator's  intention  to  keep  it  in  that  state,  which  he 
manifested  by  applying  the  words  "  trust  money"  not  to  each  child's 
share,  but  to  the  whole  fund. 

The  next  subject  proposed  for  consideration  is — 

SECT.  V.  Lapsed  Legacies  when  the  bequests  are  made  under 

Powers. 

The  general  rule  of  equity  relating  to  lapses,  is  equally  applica- 
ble, whether  the  legacy  be  given  under  a  will  made  by  virtue  of 
donorship  flowing  originally  from  the  testator,  or  whether  it  be  given 
under  a.  power  created  for  the  purpose;  fpr,  in  the  latter  case,  al- 
though the  legatee  will  take  under  the  authority  of  the  power,  yet 
he  will  not  be  considered  as  taking  from  the  time  of  its  creation,  so 
as  to  prevent  a  lapse  occasioned  by  the  death  of  the  legatee  before 
the  appointor,  when  the  power  is  executed  by  will,  and  for  the  fol- 
lowing reasons.  The  legatee  does  not  take  under  the  power  solely 
and  exclusively,  but  under  it  and  the  will  jointly.  The  will  so  made, 
is  to  be  construed  and  considered  like  all  others.  It  is,  therefore, 
ambulatory,  revocable,  and  incomplete,  till  the  death  of  the  testator; 
consequently,  no  person  can  take  under  it,  who  does  not  survive 
him.  If,  then,  an  appointee,-  by  will  made  under  a  general  power, 
die  before  the  testator,  his  legacy  will  lapse  in  all  such  instances,  as 
it  would  do,  if  the  legacy  had  been  given  out  of  the  testator's  own 
property,  over  which  he  had  absolute  dominion. 

Accordingly  in  Oke  v.  Heath,(p)  Mrs.  Smith  was  empowered,  by 
articles  of  settlement,  entered  into  upon  her  marriage  with  William 
Smith,  to  appoint  by  deed  or  will  40001.  to  such  persons  as  were  or 
should  be  her  next  of  kin,  in  the  events  of  her  dying  before  her 
husband,  and  without  leaving  issue,  both  of  which  events  happened; 
Mrs.  Smith  executed  her  power  by  .will,  appointing  the  40001.  to 
her  nephew,  W.  Gill,  he  paying  out  of  it  an  annuity  to  his  mother 
for  life.  W.  Gill  died  Before  the  testatrix.  Lord  Hardwicke  de- 

(/z)  1  Ves,  sen.  135.  141. 


338  Of  Lapsed  Legacies.  [Cn.  VIII, 

cided  that  so  much  of  the  fund  as  was  appointed  to  Gill  beneficially, 
lapsed  by  his  death,  but  not  the  mother's  annuity  granted  out  of  it. 

The  last  case  was  followed  by  that  of  the  Duke  of  Marlborougk 
v.  Lord  Godolphin,(q)  in  which  the  Countess  of  Sunderland  was  em- 
powered by  the  will  and  codicil  of  her  first  husband,  to  appoint 
30,000/.  by  deed  or  will  among  such  of  his  children  as  she  thought 
proper ;  a  power  which  was  reserved  to  the  countess  previously  to 
her  marriage  with  a  second  husband.  The  countess,  in  exercise  of 
the  power,  appointed  by  will  distinct  parts  of  the  fund  to  J.  Spencer 
and  Lady  Morpeth,  two  of  Lord  Sunderland's  children,  who  died 
before  her;  and  the  question  was,  whether  their  legacies  did  not 
lapse  in  consequence  of  the  happening  of  those  events'?  The  solu- 
tion of  which  question  depended  upon  the  legal  effect  of  a  will 
made  in  execution  -of  a  power.  And  the  clearness  with  which  Lord 
Hardwicke  expressed  himself  will  apologize  for  the  adoption  of  his 
own  words  upon  so  material  a  subject.  "  I  admit  the  principle, 
that,  when  a  person  takes  by  execution  of  a  power,  whether  it  be 
real  or  personal  estate,  it  is  taken  under  the  authority  of  that 
power ;  but  not  from  the  time  of  the  creation  of  the  power.  There 
is  no  case  that  the  relation  shall  go  back  for  that  which  is  quite  of 
another  nature,  and  that  is  the  point  which  must  be  contended  for 
here,  that  they  must  take  by  relation,  so  as  to  make  them  take  from 
the  time  of  the  creation  of  the  power ;  for  which  there  is  no  autho- 
rity, and  that  would  be  unreasonable.  The  meaning  that  persons 
must  take  under  the  power,  or  as  if  their  names  had  been  inserted 
in  it,  is,  that  they  shall  take  in  the  same  manner  as  if  the  power, 
and  the  instrument  executing  it,  had  been  incorporated  in  one  in- 
strument ;  then  they  shall  take  as  if  all  that  was  in  the  instrument 
executing  had  been  expressed  in  that  giving  the  power.  So  it  is  in 
appointments  of  uses.  If  a  feoffment  be  executed  to  such  uses  as 
the  feoffor  shall  appoint  by  will;  when  the  will  is  made,  it  is  clear 
that  the  appointee,  cestui  qm  use,  is  in  by  the  feoffment,  but  has 
nothing  from  the  time  of  the  execution  of  the  feoffment,  so  as  to 
vest  the  estate  in  him.  The  estate  will  vest  in  him  according  to  the 
nature  of  the  act  done,  and  appointment  of  the  use,  from  the  period 
of  the  testator's  death.  This,  therefore,  is  not  a  relation  so  as  to 
make  things  vest  from  the  time  of  the  power,  but  according  to  the 
time  of  that  act  executing  the -power.  Not  like  the  referring  back 
in  case  of  assignment  in  a  commission  of  bankruptcy,  for  that  is  by 
force  of  the  statute,  and  to  avoid  mesne  wrongful  acts."  An  obser- 
vation which  his  Lordship  applied  to  the  reference  of  the  due  enrol- 
ment of  a  bargain  sale  to  the  period  of  the  execution  of  that  instru- 
ment. He,  therefore,  decided  that  the  legacies  to  Mr.  Spencer  and 
Lady  Morpeth  lapsed  by  their  deaths  before  the  testatrix. 
SECT.  VI.  As  to  what  persons  will  be  entitled  to  the  benefit  of 

lapsed  Interests. — And 

!• — Of  legacies  payable  out  of  the  personal  estate. 
When  the  lapse  is  of  a  general  or  specific  legacy,  it  falls  into  the 
general  residue,  and,  consequently,  belongs  to  the  person  entitled 
to  that  fund  by  the  gift  of  the  testator.     If,  then,  a  residuary  legatee 

(?)  2  Ves.  sen.  61.  73.  and  see    Vanderzeev.  jfclom,  4  Ves.  771    Surges  v. 
bwbey,  10  Ves.   319.  326. 


SECT.  VI.]  Of  Lapsed  Legacies.  339 

be  named,  he  will  take  the  lapsed  legacy  in  that  character,  (r)  But 
that  nomination  will  not  prevent  his  taking  a  lapsed  bequest  by 
substitution,  i.  e.  in  the  place  of  the  deceased  legatee,  when  the 
testator  shows  his  intention  that  the  residuary  legatee  should  so  take 
it,  and  there  is  no  inconsistency  between  the  characters  of  a  resi- 
duary and  a  particular  or  substituted  legatee  to  prevent  it.  In  fact, 
the  latter  title  may  be  more  beneficial  than  the  former,  upon  a  defi- 
ciency of  assets  to  pay  all  the  debts  and  legacies ;  for  as  residuary 
legatee,  he  can  claim  nothing  until  all  debts  and  legacies  are  fully 
paid;  but  as  a  particular  or  substituted  legatee,  his  right  to  an 
equality  of  payment  with  the  rest  is  preserved ;  so  that,  after  rate- 
ably  abating  with  them,  he  is  entitled  to  receive  the  remainder  of  the 
legacy. («) 

An  instance  of  a  residuary  legatee  taking  by  substitution  a  gene- 
ral legacy,  and  not  as  residue,  occurred  in  the  case  of  Rose  v.  Rose,(t) 
in  which  F.  Rose  being  domiciled  in  Scotland,  and  having  ah  only 
daughter,  Mary,  devised  to  her  all  his  real  and  personal  estates,  sub- 
ject to  debts  and  several  legacies,  one  of  which  (a  debt  owing  by  his 
brother  James  Rose)  he  gave  to  James's  children  equally ;  directing 
"  the  share  of  the  deceased  to  fall  and  belong  to  his  (the  testator's) 
heir  under  his  will."  Another  legacy  was  given  in  trust  for  the  wife  of 
James  Rose;  and  one  of  10002.  to  the  testator's  natural  son,  Bernard 
Rose,  "whom  failing,  to  revert  and  return  to  his  (the  testator's)  heir 
undert  his  will."  He  also  desired  that  at  his  wife's  death  1 1,0002.  three 
per  cent  stock  (in  the  names  of  the  trustees  of  his  marriage  settle- 
ment, to  secure  to  his  wife  a  part  of  her  jointure)  "  should  revert 
and  return  to  his  heir  under  the  will ;"  to  whom  he  further  gave 
10,OOOZ.  sterling,  free  from  all  deductions.  The  will  then  declared 
the  gift  of  the  10,0002.  to  be  in  addition  to  the  legacy  of  the  stock; 
and  that  in  the  event  of  a  deficiency  of  assets-  to  pay  legacies,  his 
daughter's  fortune  should  not  abate  below  10,0002.  unless  she  died 
without  heirs  of  her  body ;  and,  in  that  case,  the  defect  of  asset  was 
not  to  prejudice  the  other  legacies ;  but  that,  any  legatee  dying  be- 
fore him,  "  his  or  her  legacy  should  fall,  accrue,  and  belong  to  his 
heir  before  mentioned."  Bernard  Rose,  the  legatee  of  10002.,  died 
before  the  testator.  And  the  question  was,  whether  that  sum  lapsed 
into  and  formed  part  of  the  residue  bequeatued  to  Mary,  or  belonged 
to  her  as  a  particular  legatee  by  substitution  in  the  place  of  Bernard"? 
Sir  William  Grant,  M.  R.,  was  of  opinion,  founded  upon  the  lan- 
guage and  import  of  the  will,  that  the  testator  intended  to  substitute 
his  daughter,  by  substantive  and  independent  gifts,  in  the  places  of 
the  legatees  who  might  happen  to  die  before  him. 

But  if  a  testator  make  no  disposition  of  the  residue,  and  appoint 
an  executor,  then,  although  the  executor  be  entitled  to  it  at  law  ex 
virtute  ojficii;  and  also  in  a  court  of  equity,  if  there  be  no  circum- 
stance indicating  the  testator's  intention  to  the  contrary  (a  subject 
considered  in  a  subsequent  chapter;)  yet  it  seems  not  clearly  settled 
whether  that  Court  will  permit  him  to  take  lapsed  legacies  for  his 
own  benefit.  It  may,  however,  be  strongly  urged,  that  the  testator, 
in  giving  the  legacy,  sufficiently  showed  his  meaning,  that  his  execu- 

(r)  Roberts  v.  Cooke,  16  Ves.  451.  Leakev.  Robinson,  2  Meriv.  393.  and  see 
1  Ves.  &  Bea,  385.  (s)  See  Chap.  V.  sect.  2  p.  253.  (/)  17  Ves.  347.  352. 


340  Of  Lapsed  Legacies  [Cn.  VIII. 

tor  should  not  in  that  character  be  entitled  to  so  much  of  his  per- 
spiial  estate  as  was  equivalent  in  amount  to  the  bequest;  and,  con- 
sequently, that  the  accident  which  produced  the  lapse  should  enure 
to  the  benefit  of  the  testator's  next  of  kin.(w) 

2.  The  same  principle  applies  to  residuary  estates.    Hence  it  fol- 
lows, that  if  a  sole  residuary  legatee,  or  one  intended  to  take  the  re- 
sidue in  common  with  other  persons,  die  before  the  testator,  the  lap- 
sed share  will  belong  to  the  testator's  next  of  kin.(x) 

3.  When  legacies  are  given-Out  of  freehold  estates,  and  some  of 
them  lapsed  by  the  deaths  of  the  legatees  during  the  life  of  the  tes- 
tator; to  whom  these  interests  belong,  has  been  a  subject  of  litiga- 
tion between  his  heir  and  devisee.'  The  first  lias  claimed  them  as  in- 
terests in  land  undisposed  of  by  the  will,  and  the  second  has  made 
title  to  them  as  parts  of  the  estate  which  was  devised  to  him.  In  the 
settlement  of  these  claims  it  is  necessary  to  attend  to,  the  distinction 
between  a  beneficial  devise  of  the  estate  to,  or  in  trust  for  A.  charged 
with  particular  legacies,  and  a  devise  to  a  mere  trustee  to  pay  those 
particular  legacies;  a  devise  of  lands  in  trust  to  sell  and  pay  lega- 
cies generally,  not  being  affected  (as  we  have  seen)  by  the  death  of 
any  legatee  before  the  testator,  if  the  whole  fund  be  necessary  to  the 
full  discharge  of  the  other  bequests. (y] 

In  the  first  instance,  as  the  estate  is  effectually  devised  to  A.  for 
his  own  benefit,  and  he  is  substituted  by  the  testator  in  place  of  his 
heir,  A.  will  be  entitled  to  the"  same  benefits  as  the  heir  would  have 
been  if  no  disposition  had  been  made  of  the  land.  Upon  which 
principle  it  is  firmly  settled  (as  observed  by  Lord  Alvanley  in  Ken- 
nell  v.  Abbott. ,)(z)  that  if  an  estate  be  devised  charged  with  legacies, 
which  fail,  no  matter  how,  the  devisee  shall  have  the  benefit  of  them. 

But  this  is  not  so  in  the  second  instance,  where  the  estate  is  devised 
to  a  mere  trustee  in  trust  to  sell  and  .pay  particular  sums  of  money,  as 
to  B.-,  C.  and  D.,  which  lapse  by  their"  deaths  before  the  devisor,  and 
no  disposition  is  made  of  the  extra  produce: .  For  the  heir  is  not 
disinherited,  and  he  is  legally  entitled  to  all  such  interests  in  the  es- 
tate as  are  not  effectually  disposed  of;  -consequently,  those  lapsed 
legacies  will  sink  into  the  land. for  his  benefit'.(a) 

4.  Questions  have  also  arisen 'between  the  heir  and  residuary  le- 
gatee, and  the  heir  and  next  of  kin  of  the  testator,  in  regard  to  the 
right  to  lapsed  bequests  affecting  the  real  estate  -;  where  it  and  the 
personal  fund  were  blended  and  made  one  and  the  same  for  the  pay- 
ment of  legacies  ;  and  the  surplus  of  the  consolidated  property  was 
either  undisposed  ofr  or  bequeathed  to  A.  singly,  or  to  B.  and  C.  as 
tenants  in  common. 

The  solution  of  these  questions  depends  upon  previously  ascertain- 

(u)  1  Atk.  496.  18  Ves.  254,  255.  Vide  infra,  Chap.  XXIV.  sect.  2.  sub. 
sect.  6.  •'  • 

(JT)  Bag^vell  v.  Dry,  1  P.  Will  700.  Page  v.  Page,  2  P.  Will.  489.  Owen  v. 
Owen,  1  Atk..  494,  .  Peat  v.  Chapman,  1  Ves.  sen.  542.  Bennet  v.  Batchelor, 
1  Ves.  jun.  63  Ackroydv.  Smithson,  1  Bro.  C.  C.503.  515.  Chesslynv.  Cres&well, 
3  Bro.  Parl.  Ca.  246.  8vo.  ed.  and  Williams  v.- Condi-,  10  Ves.  500.  et  -vide  ante, 
p.  331.  et  seq.  (y)  17  Ves.  466,  and  see  ante,  p.  285. 

(z)  4  Ves.  811.  etvide  Baker  v.  Hull,  12  Ves.  497.  also,  Ambl.  495.  1  Bro. 
C.  C.  61. 

(a)  17  Ves.  466.  and  sufira,  p.  285;  See  also  Chap.  XII.  on  the  exoneration  of 
the  real  by  the  personal  estate,  and  the  next  chap,  sect,  1.  et  passim. 


SECT.  VI.]  Of  Lapsed  Legacies.  341 

ing  whether  the  testator  intended  to  change  the  nature  of  his  free- 
hold property,  and  to  impress  upon  it  the  character  and  quality  of 
personal  estate  to  all  intents  and  purposes.  By  this  test  alone  were 
all  the  cases  determined  which  relate  to  the  present  subject. 

If  then  a  sale  or  charge  of  freehold  property  be  directed  to  answer 
particular  purposes,  and  any  of  them  fail  by  lapse  in  the  testator's 
life,  we  have  seen  that  the  heir  will  be  entitled  to  the  benefit  of  them, 
because  those  interests  are  to  be  considered  as  so  much  land  undis- 
posed of. 

But  where  the  testator  ordered  his  freehold  estate  to  be  sold,  and 
the  proceeds  to  be  added  to  his  personal  property,  and  directed  both 
to  be  applied  indiscriminately  in  the  payment  of  debts  and  legacies, 
and  then  gave  the  surplus,  as  before  mentioned,  to  A,  singly,  or  to 
B.  and  C.  as  tenants  in  common ;  such  a  disposition  has  been  con- 
sidered, with  other  circumstances,  a  total  conversion  of  the  land  into 
money,  so  as  to  entitle  A.  or  B.  and  C.  to  the  benefit  of  lapses  in 
preference  to  the  heir. (6) 

The  doctrine  of  conversion  of  real  into. personal  estate  being  of 
frequent  occurrence,  and  great  nicety,  it  is  presumed  that  no  apolo- 
gy will  be  necessary  for  devoting  the  ensuing  chapter  to  the  exclu- 
sive consideration  of  so  important  a  subject. 


CHAPTER  IX. 

Of  the  Conversion  of  Real  into  Personal  Estate. 
THE  person  appointed  by  law  to  succeed  to  the  undisposed  free- 
hold estate  of  his  ancestor  is  the  heir,  so  that  his  title  being  to  the 
whole,  includes  every  part.  'Hence,  if  the  estate,  or  any  portion  of 
it,  be  not  devised,  or  not  effectually  disposed  of,  it  descends  to,  or  is 
a  resulting  trust  to  the  heir.  Questions,  therefore,  as  to  the  heir's 
title,  may  be  reduced  to  three.  First,  whether  he  is  wholly  disin- 
herited by  the  devise  of  the  estate  to  a  stranger,  subject  to  particular 
charges.  Secondly,  whether  he  is  partly  so  disinherited,  the  estate 
being  devised  merely  to  answer  particular  purposes.  Or,  thirdly, 
whether  the  disposition  of  the  property  be  such,  as  clearly  to  show 
the  testator's  intention  to  change  the  nature  of  the  fund,  by  convert- 
ing it  from  real  into  personal  estate,  which  is  commonly  described 
as  " a  conversion  out  and  out"  In  the  first  case,  if  the  heir  be  so 
wholly  disinherited,  the  devisee  will  be  entitled  to  the  benefit  of  the 
failure  of  any  charges  imposed  upon  it  by  the  testator  j  since  he  is 
substituted  for  the  heir.  In  the  second,  if  the  estate  is  so  devised, 
so  much  of  the  estate,  or  of  its  produce,  as  remains,  after  the  parti- 
cular purposes  are  answered,  will  result  to  the  heir,  who  will  also  be 
entitled  to  the  advantages  arising  from  the  lapse,  failure,  or  illegality 
of  any  of  the  purposes  to  which  the  estate  was  intended  to  be  ap- 
plied. And  in  the  third  case,  if  such  intention  on  the  part  of  the 
testator  be  evident,  what  remains,  will  be  money  in  the  hands  of  the 
persons  to  whom  the  surplus  is  given,  unless  they  elect  to  take  it  as 

(6)  4  Ves.  802.  810.    And  see  the  next  chapter  for  details  upon  this  subject ; 
also  Chap.  XII. 

VOL.  I.  X    X 


342  Conversion  of  Real  [Cn.  IX. 

land :  and  if  any  of  the  preceding  purposes  fail,  it  seems  that,  in 
consequence  of  the  absolute  conversion  of  the  land  into  personalty, 
the  residuary  legatees  will  be  entitled  to  the  benefits.  These  sub- 
jects, and  others  connected  with  them,  will  be  separately  treated  of 
in  this  chapter,  and  discussed  under  the  following  heads  : 

SECT.  I.  Right  of  the  heir  or.  devisee  to  the  surplus  of  real 
estate  subjected  to,  charged  or  devised  for  parti- 
cular purposes,  as  well  where  a  sale  is,  as  where  it 
is  not  expressly  directed,  and  their  respective 
rights  to  lapsed  interests. 

1. — When  the  devisee  is  entitled  to  the  surplus. 

2. — When  the  heir  is' entitled  to  it.    And 

3. — Of  their  respective  titles  to  lapsed  interests. 

SECT.  II.  Right  of  the  residuary  devisees  or  legatees,  to  the 
net  produce  from  a  sale  of  lands  under  the  resi- 
duary clause. 

1. — When  the  net  proceeds  will  not  pass,  but  result  to 
the  heir.  And 

FIRST.    When  the  residuary  ,  bequest  isin  the 

same  will  that  devises  the  real  estate. 
SECOND.  When  it  is  contained  in  a  codicil. 
2. — When  the  net  proceeds  will  pass  as  personal  es- 
tateunder  the  residuary  clause. 

SECT.  III.  Right  of  the  testator's  executors  and  next  of  kin, 
to  the  net  produce  from  the  sale  of  lands. 

1 . — Of  his  executors. 
2. — Of  his  next  of  kin. 

SECT.  IV.  Right  of  the  heir  or  of  the  devisees  of  Proceeds 
from  a  sale  of  land  to  lapsed  interests. 

1 . — Where  the  proceeds  are  given  distinct  from  the  per- 
sonal estate. 

2. — Where  the  proceeds  are  given  and  blended  with  the 
personal  estate. 

3. — Title  of  surviving  devisees  to  real  proceeds  lapsed  by 
the  death  of  one  or  more  of  their  companions.  And. 
FIRST.  When  the  y  originally  take  as  joint  tenants. 
SECOND.  When  as  tenants  in  common. 

SECT.  V.  Right  of  personal  representatives  of  devisee  or  lega- 
tee of  real  proceeds,  in  preference  to  testator's  heir. 
SECT.  VI.  When  Produce  from  sale  of  land,  resulting  to  tes- 
tator's heir,  is  to  be  considered  land  or  money. 
\.-When  there  is  no  disposition  of  the  surplus. 
2. — When  the  residuary  real  proceeds  are  disposed  of, 

and  part  of  them  lapse  and  result  to  the  heir. 
^.—^-Ekction. 

SECT.  VII.  When  the  devisees  of  the  real  produce,  take  it  as 
land  or  money. 


SECT.  I.]  into  Personal  Estate.  343 

SECT.  I.  Right  of  the  heir  or  devisee  to  the  surplus  of  real 
estate  subject  to,  charged  or  devised  for  particular  pur- 
poses, as  well  where  a  sale  is,  as  where  it  is  not  expressly 
directed,  and  there  respective  rights  to  lapsed  interests. 

1.  Of  the  devise  of  freehold  lands  for  particular  purposes,  which 
entitle  the  devisee  of  the  estate,  and  not  the  heir,  to  the  property, 
after  those  purposes  have  been  satisfied. 

The  reader  will  observe,  that  this  first  section  embraces  several 
cases  which  are  not  strictly  cases  of  .conversion,  as  the  question  of 
conversion  only  arises  where  a  sale  is  directed ;  but  it  was  thought 
advisable  to  discuss  those  cases,  where  no  sale  is  directed,  inasmuch 
as  they  are  nearly  allied  to  those  which  properly  fall  under  conside- 
ration in  the  present  chapter. 

When  it  appears,  upon  a  fair  construction  of  the  will,  that  the  per- 
sons to  whom  freehold  lands  are  given,  subject  to  particular  charges 
or  payments,  were  intended  to  take  the  estate  beneficially  after  satis- 
faction of  those  obligations,  it  is  settled  that  the  heir  can  claim 
nothing  as  a  resulting  trust ;  for  he  is  disinherited  by  the  disposition, 
and  the  devisee  is  substituted  for  him,  and  entitled  to  the  same  pri- 
vileges as  the  heir  would  have  been,  if  the  estate  had  not  been  be- 
queathed. Hence  the  property,  subject  to  the  charges  upon  it,  or 
to  such  of  them  as  take  effect,  will  belong  to  the  devisee,(a)  as  re- 
marked in  the  concluding  section  of  the  last  chapter. 

But  it  must  be  noticed,  that  no  general  rule  can  be  laid  down, 
as  every  case  depends  upon  its  own  circumstances. (6)  The  only 
fact  to  be  ascertained  is,  whether  it  clearly  appears,  from  a  rational 
construction  of  the  will,  to  have  been  the  testator's  intention  to 
give  the  estate  to  the  devisee,  subject  only  to  the  demands  he  has 
charged  upon  it.  .  t 

In  forming  a  judgment  in  such  a  case,  courts  of  equity  have  con- 
sidered it  a  material  feature,  when  the  estate  was  given  directly  to 
the  devisee  charged  with  the  payment  of  sums  of  money,  or  when  it 
was  given  to  him  in  trust,  to  make  such  payments ;  and  upon  the 
following  reasoning  :  that  in  the  one  instance,  a  trust  being  express- 
ly created,  fixes  the  character  of  a  trustee  upon  the  devisee,  which 
renders  him  accountable  to  the  heir  for  so  much  of  the  inheritance 
as  is  not  wanted  for  the  purposes  of  the  will ;  but  in  the  other,  since 
a  trust  (if  any)  must  be  raised  by  implication,  from  a  fair  construc- 
tion of  the  will,  the  intention  of  the  testator  is  the  chief  guide;  an 
intention  which  must  be  clear,  in  order  to  counteract  the  effect  of  a 
disposition,  that  prima  facie  imparts  to  the  devisee  the  beneficial  in- 
terest in  the  estate.  After  these  preliminary  observations,  we  shall 
commence  our  inquiries  in  considering — 

First.  The  effect  of  a  devise  of  freehold  property  to  a  person  to 
sell  to  a  particular  individual,  and  where  no  express  disposition  is 
made  of  the  proceeds. 

In  Hill  v.  the  Bishop  of  London,(c]  Lord  Hardwicke  observed,  in 
reference  to  this  subject,  that  "  if  J.  S.  devised  lands  to  A.  to  sell  to 
B.  for  the  particular  advantage  of  B.,  that  advantage  was  the  only 
purpose  to  be  served,  according  to  the  testator's  intention,  and  to  be 

(a)  4  Ves.  811.     12  Ves.  497.  (6)  1  Atk.  620.  (c)  1  Atk.  619. 


344  Conversion  of  Real  [Cn. IX 

satisfied  by  the  mere  act  of  selling,  let  the  money  go  where  it  will ; 
yet  (said  his  Lordship)  there  was  no  precedent  of  a  resulting  trust  to 
the  heir  in  such  a  case."  It  is  not  indeed  probable,  that  there  should 
be  a  precedent  to  that  effect ;  since  the  devise  upon  the  face  of  it 
imports  to  be  a  devise  of  the  estate  to  A.  beneficially,  with  a  direc- 
tion (not  an  expressed  trust)  to  sell  it  to  B.  The  money,  therefore, 
of  right,  would  belong  to  A.  to  whom  the  estate  was  given. 

Upon  the  same  principle,  if  A.  devise  lands  to  B.  to  sell  for  the 
best  price  to  C.  or  to  demise  them  to  him  for  three  years  at  a  par- 
ticular fine,  there  would  be  no  resulting  trust  to  the  heir,  either 
of  the  money  produced  from  the  sale,  or  of  the  reversion  upon  the 
demise,(d)  because  the  objects  of  the  testator's  benevolence  were 
A.  and  C.  ;  the  former  by  a  gift  of  the  estate,  and  the  latter  in  the 
privilege  of  purchasing  or  accepting  a  demise  of  it. 

The  same  reasoning  applies — 

Secondly,  to  the  devise  of  freehold  lands  to  a  person  charged  with 
(not  upon  express  trust  to  pay)  debts  and  legacies,  for  in  such  case 
the  devisee  (and  not  the  heir)  will  be  entitled  to  the  surplus  of  the 
real  fund  after  payment  of  the  debts  and  legacies(e)  and  to  all  advan- 
tages from  failures  of  any  of  the  charges. 

That  this  is  well  settled  was  stated  by  Lord  Eldon  in  King  v.  Deni- 
son,(f)  in  which  he  observed,  that  if  A.  devise  to  B.  and  his  heirs 
all  his  real  estate  charged  with  debts,  although  the  disposition  be 
for  a  particular  purpose,  it  is  not  the  only  one  ;  for  the  devise  is  of 
an  estate  of  inheritance,  in  order  to  give  to  the  devisee  the  beneficial 
interest  subject  to  a  particular  purpose,  and  that  where  the  legal  in- 
terest is  given  for  a  particular  purpose,  with  an  intention  to  impart 
to  the  devisee  of  the  legal  estate  the  beneficial  interest,  if  the  whole 
of  the  real  fund  be  not  exhausted  in  answering  the  particular  pur- 
pose, the  surplus  goes  to  the  devisee,  as  it  is  intended  to  be  given  to 
him. 

That  reasoning  Lord  Eldon  found  to  have  been  adopted  and  acted 
upon  by  Lord  Hardwicke  in  Hill  v.  The  Bishop  of  London,(g)  a 
case  of  which  Lord  Eldon  expressed  his  approbation.  In  it  one 
Richard  Smith,  after  charging  all  his  worldly  estate  with  his  debts, 
bequeathed  his  perpetual  advowson  ofBushey,  and  the  glebe,  profits, 
and  appurtenances,  to  his  mother-in-law,  Grace  Smith,  expressing  it 
to  be  his  will  and  desire  that .  she  should  sell  them  to  the  fellows  of 
Eton  College,  or  to  the  fellows  of  Trinity  College  in  Oxford  ;  those 
of  Eton  to  have  the  preference  ;  but,  if  both  refused,  he  directed  the 
advowson,  &c.  to  be  sold  to  the  fellows  of  any  of  the  colleges  of 
Oxford  or  Cambridge,  who  would  give  the  most  money  for  them. 
The  testator  also  gave  to  Mrs.  Smith  absolutely  his  other  real  estates, 
and  made  her  his  residuary  legatee  and  executrix.  The  question 
was,  whether  the  testator's  co-heiresses  or  Mrs.  Smith  the  devisee, 
should  present  to  the  living,  become  vacant  by  the  death  of  the  tes- 
tator ;  the  former  insisting  upon  a  resulting  trust,  and  the  latter 
claiming  the  advowson,  &c.  as  absolute  devisee.  Lord  Hardwicke, 
after  the  first  argument,  declared  in  favour  of  the  co-heiresses,  under 
a  conception  that  the  devise  was  a  trust  in  Mrs.  Smith  to  sell  the 

1  Atk.  61  and  see  2  Scho.  &  Lefroy,  545.  (e)  See  Chap.  XII.  sect  1. 

1  Ves.  &  Bea.  272.  Baker  v.  Hall,  12  Ves.  497.  S.  P.    (gfl  Atk.  618. 


SECT.  I.]  into  Personal  Estate.  345 

advowson  according  to  the  directions  of  the  will ;  and  also  for  pay- 
ment of  the  testator's  debts ;  after  which,  the  surplus  was  a  resulting 
trust  for  the  co-heiresses,  to  whom  belonged  the  right  of  presenta- 
tion as  cestui  que  trusts.  But  upon  a  second  argument,  his  Lord- 
ship changed  his  opinion  in  favour  of  Mrs.  Smith  the  devisee,  for  the 
reasons  before  stated. 

The  last  case  seems  to  be  an  instance  of  a  very  clear  manifesta- 
tion of  the  testator's  intention  to  give  to  Mrs.  Smith,  for  her  own 
benefit,  the  advowson  and  its  produce ;  for,  independently  of  the 
circumstance  that  no  express  trust  is  declared,  she  appears  upon 
the  face  of  the  will  to  be  the  special  object  of  the  testator's  bounty, 
by  the  devise  to  her  of  an  estate  absolutely,  and  by  his  appointment 
of  her  as  residuary  legatee  and  sole  executrix. 

In  the  case  .of  Rogers  v.  Roger  s,(h]  where  a  testator  gave  5J.  to 
his  heir,  and  appointed  his  dearly  beloved  wife  sole  heiress  and  execu- 
trix of  all  his  .real  personal  estates,  to  sell  and  dispose  of  at  her 
pleasure,  and  to  pay  his  debts  and  legacies  ;  the  question  was,  whe- 
ther the  wife  was  a  trustee  for  the  heir  of  the  surplus  real  property 
after  payment  of  the  debts  and  legacies'?  And  Lord  King,  Ch.  de- 
termined in  the  negative,  because  the  legal  effect  of  the  devise  was 
to  substitute  the  wife  in  the  place  of  the  heir,  which,  corresponded 
with  the  intention  of  the  testator  appearing  as  well  from  the  terms 
of  affection  in  which  the  wife  was  described,  as  in  the  gift  of  a  le- 
gacy to  the  heir. 

So  also  in  Lloyd  v.  Wentworth,(i}  the  devise  was  "  all  the  residue 
(of  real  estate)  I  give  to  my  wife,  to  enable  her  to  pay  my  debts, 
legacies,  and  funeral  expenses."  The  testator's  heir  contended, 
that  as  the  devise  was  to  enable  the  wife  to  pay  debts,  &c.  it  was 
merely  a  gift  in  trust ;  so  that,  after  those  payments,  the  residue  was 
a  resulting  trust  for  him.  But  Lord  Thurlow  determined  in  favour 
of  the  wife. 

The  reason  of  his  Lordship's  decree  is  clear,  viz.  the  apparent 
intention  of  the  testator  to  give  his  wife  the  estate  beneficially ;  with 
a  charge  upon  it  for  payment  of  his  debts,  &c.  The  case,  therefore 
falls  within  the  rule  laid  down  by  Lord  Eldon,  and  before  stated. (fe) 

The  principle  which  produced  uniformity  in  the  last  determina- 
tion cannol  escape  observation.  We  shall  merely  add  one  more 
case  of  a  very  recent  date. 

In  King  v<  Denison,(l)  Frances  Isaacson,  after  directing  payment 
of  all  her  just  debts,  devised  her  real  estate  to  her  cousins,  Mary 
Altham  and  Arabella  Isaacson,  "  subject  to  and  chargeable  with  se- 
veral annuities."  The  testatrix  then  gave  her  personal  estate  to 
three  persons,  "  subject  to  and  chargeable  with"  her  debts  and  the 
legacies  after  bequeathed  by  her,  and  appointed  them  executors. 
The  annuitants  being  dead,  the  real  estate  was  claimed  by  the  tes- 
tatrix's heirs,  upon  the  ground  of  its  being  devised  for  particular 
purposes,  which  having  determined,  they  were  entitled  to  the  lands 
as  a  resulting  trust;  but  the  devisees  claimed  the  property  as  a  be- 
neficial devise  subject  to  payment  of  the  annuities.  And  Lord 

(A)  3  P.  Will.  193.  and  see  Starkey  v.  Brooks,  1  P.  Will.  390.  stated  infra, 
p.  349.  (0  Cited  2  Bro.  C.  C,  594.  (fr)  Ante,  p.  344. 

(0  1  Ves.  &  Bea.  260.  272,  276.  279. 


346  Conversion  of  Real  •     .     [Cn.  IX. 

Eldorfs  opinion  was  in  their  favour;  his  Lordship  observing,  "that 
the  disposition  \vas  a  devise  in  law  for  the  purpose  of  giving  the  es- 
tate, but  with  an  ulterior  purpose  that  the  devisees  should  take  it 
subject  to  the  annuities." 

Lord  Eldon  also  expressed  an  opinion  in  the  above  case,  that  if 
the  executors  were  to  be  considered  trustees  of  the  personal  residue 
from  the  effect  of  the  words,  "subject  and  chargeable  with,"  as  ap- 
plied to  that  fund,  the  same  words  would  not  produce  a  similar  re- 
sult upon  the  real  estate  given  to  the  devisees,  although  those  words 
were  used  in  relation  to  both  funds  in  the  same  will.  "  Does  it  fol- 
low (said  his  Lordship)  that  the  words  •*  subject  and  chargeable'  are 
to  have  the  same  construction  in  both  parts  of  the  will  9  That  is  not 
a  consequence.  I  cannot  infer  from  the  construction  which  the  tes- 
tatrix giving  these  legacies  has  put  upon  those  words,  so  much  as  to 
deny  them,  as  to  the  real  estate,  their  ordinary  construction  (a  mere 
charge,)  if  there  be  no  expressions,  applicable  to  the  devise  of  it, 
equivalent  in  their  effect  to  pare  down  the  ordinary  meaning  of 
those  words ;  and  the  construction  must  be  the  same,  as  if  she  had 
expressly  said,  that  the  personal  estate  was  to  be  subject  to  and 
chargeable  with  the  legacies,  that  she  did  not  mean  her  executors  to 
take ;  but  that  as  to  the  personal  fund  they  were  to  be  trustees, 
making  no  such,  declaration  as  to  the  real  estate."(ra) 

The  before  mentioned  authorities  have  proved  a  part  of  the  obser- 
vation made  in-  the  beginning  of  this  section,  that  a  devise  to  A.  sub- 
ject to  particular  charges,  is  a  beneficial  disposition  to  him,  and  re- 
pels the  usual  trust  by  implication  of  the  estate  for  the  heir,  after 
those  charges  have  been  satisfied ;  but  the  remaining  part  of  the  ob- 
servation alluded  to  remains  for  consideration;  viz.  that  a  devise  to 
A.  upon  trust  to  pay  particular  sums  of  money  is  not,  in  general,  a 
beneficial  disposition  of  the  estate  in  favour  of  A.  but  to  him  only 
and  solely  to  execute  those  purposes  or  trusts,  leaving  the  surplus  of 
the  property  a  resulting  trust  for  the  testator's  heir  at  law.w  Before 
we  proceed  to  produce  authorities  upon  this  subject,  it  is  proper  to 
remark,  that  the  fact  of  the  word  "  trust"  being  or  not  being  used 
in  the  devise  of  the  estate  to  A.  is  a  mere  circumstance  in  the  case 
to  be  attended  to;  for  if  the  whole  frame  of  the  will  create 'a  trust, 
for  the  particular  purpose  of  satisfying  which  the  estate  is  devised, 
the  law.  is  the  same,  although  the  word  "  trust"  be  not  used.(w) 

Thus  in  Buggins  v.  Yates,(o)  A.  devised  his  freehold  estates  to  his 
wife  B.  in  fee,  to  be  sold  to  pay  his  debts  and  legacies  in  aid  of  his 
personal  estate.  There  being  no  necessity  to  resort  to  the- land  for 
•those  purposes,  the  heir  claimed  them  as  a  resulting  trust,  in  oppo- 
sition to  the  devisee.  The  Court  was  of  opinion,  that  were  lands 
are  devised  to  be  sold,  in  aid  of  the  personalty,  for  payment  of  debts 
and  legacies,  and  no  sale  is  made. in  consequence  of  the  sufficiency 
of  the  personal  estate,  a  trust  in  the  devisee  for  the  heir  was  ckarly 
implied. 

But  the  intention  to  raise  a  trust  must  be  clear,  or  the  legal  title 

(m)  1  Ves.  &  Bea.  278.  and  see  Randall  v.  Baokcy,  Pre.  Ch.  162.  and  Gibbs  v. 
Rumsbey,  2  Ves.  "Sc  Bea.  294.  (n)  1  Ves,  &  Bea,  27.3. 

(o)  9  Mod.  122.-  And  see  Chitty  v.  Parker,  2  Ves.  jun.  271.  stated  infra,  sect. 
3.  sub-sect.  2. 


SECT.  I.]  into  Personal  Estate.  347 

of  the  devisee  to  the  absolute  inheritance  of  the  estate  will  prevail ; 
as  appears  from  the  case  of  King  v.  Denison  before  stated.  Yet  al- 
though the  word  "  trust"  be  inserted  in  the  will  in  the  declaration  of 
a  particular  purpose,  to  which  a  sufficient  part  of  the  estate  is  to  be 
applied ;  if  the  contents  of  the  will  manifestly  show  an  intention  that 
the  devisee  was  meant  to  take  the  estate  subject  to  that  purpose,  he 
will  be  entitled  to  it  in  preference  to  the  heir. 

An  instance  of  this  was  considered  to  occur  in  the  ease  of  Coning- 
ham  v.  Mellish,(p}  in  which  A.  devised  to  his  cousin  Thomas  Mel- 
lish  a  dwelling-house  to  hold  to  him  and  his  heirs,  in  trust  to  be  sold 
for  the  payment  of  debts  and  legacies  within  a  year  after  the  testa- 
tators  death ;  and  he  appointed  Mellish  executor.  Another  cousin  of 
the  testator  was  his  heir,  who  claimed  the  residue  of  the  messuage 
after  the  debts  and  legacies  were  satisfied.  But  the  Court,  consist- 
ing of  the  Lord's  Commissioners  Robinson  and  Hutchins,  decided 
that  there  was  no  resulting  trust  for  the  heir. 

The  following  must  have  been  the  grounds  of  the  decree,  though 
their  sufficiency  may  be  doubted. (</)  First,  equality  of  relation  be- 
tween the  testator  and  his  heir  and  devisee  ;  and,  secondly,  the  pre- 
ference shown  to  the  latter  in  his  appointment  of  sole  executor,  which 
gave  him  the  whole  of  the  personal  residue  in  exclusion  of  the  former. 
From  these  data  the  Court  drew  this  conclusion :  that  Thomas,  the 
devisee  of  the  real  estate,  was  the  chief  object  of  the  testator's  boun- 
ty; and  that  the  testator  could  not  intend  any  part  of  that  estate  to 
result  to  his  heir,  since  it  might  be  attended  with  a  consequence, 
which  would  defeat  his  intentionun  giving  Thomas  his  personal  es- 
tate ;  for  as  that  fund  was  first  applicable  to  pay  debts  and  legacies, 
if  it  were  exhausted  in  so  doing,  Thomas  would  take  nothing  either 
of  the  personal  or  real  property,  but  the  heir  would  take  all. 

We  shall  now  produce  an  instance  of  devises  of  real  estates  upon 
express  trusts  being  held  to  take  no  beneficial .  interest  in  the  pro- 
perty, but  to  be  trustees  of  the  undisposed  surplus  for  the  testator's 
heir. 

In  the  case  of  Southouse  v.  Bate,(r^  Mr.  Southouse,  after  bequeath- 
ing legacies  (two  of  which  of  equal  amount  he  gave  to  his  executors 
and  trustees,  A.  and  B.,  devised  tov2.  and  B.  "  all  his  property,  both 
real  and  personal,  upon  special  trust  that  they  pay  regular  the  fol- 
lowing annuities."  He  then  gave  annuities,,  and  disposed  of  his 
clothes  and  furniture,  appointing  A.  andZ?.  "their  heirs,  executors, 
and  administrators  his  executors,  upon  especial  trust  and  confidence 
that  they  devoted  all  his  property,  both  real  and  personal,  in  pay- 
ment of  his  debts,  and  all  the  legacies  and  annuities  given  by  him 
in  trust  to  them.  A.  and  B.  claimed  the  residuary  real  and  perso- 
nal estates  as  beneficial  devisees,  and  not  in  trust ;  contending  upon 
the  first  part  of  the  will,  that  as  the  trust  declared  was  not  at  all  ap- 
plicable to  real  property,  but  only  to  a  particular  portion  of  the  per- 
sonal estate,  the  devise  ought  to  be  read  thus  :  "  I  give  and  bequeath 
to  A.  and  B.  all  my  property,  both  real  and  personal ;  but  as  to  my 
funded  property  on  this  especial  trust,  &c.;"  a  construction,  if  ad- 
missible, that  would  entitle  A.  and  B.  to  the  surplus  of  both  funds 

(/;)  Pre.  Ch.  31.     2  Vern.  247.  5.  C. 

($0  1  Ball.  8c  Beat.  544.  (r)  2  Ves.  &  Bea.  396. 


348  Conversion  of  Real  [Cn,  IX. 

as  devisees  for  their  own  benefit.  But  Sir  William  Grant,  M.  R., 
observed,  that  whatever  was  the  ambiguity  of  the  clause,  it  was  re- 
moved by  the  concluding  one,  which  declared  that  the  whole  was 
given  in  trust  for  the  payment  of  debts,  legacies  and  annuities  ;  so 
that  it  was  impossible  for  the  devisees  to  take  any  part  beneficially : 
upon  which  his  Honour  decreed  «#.  and  B.  to  be  trustees  both  of  the 
real  and  personal  estates  ;  of  the  first  for  the  heir,  and  of  the  second 
for  the  next  of  kin. 

Having  stated  the  importance  to  be  attached  to  the  distinction  be- 
tween a  trust  being  or  not  being  expressed  in  devising  an  estate  for 
a  particular  purpose,  we  shall  proceed  to  consider — 

2.  The  cases  establishing  the  title  of  the  heir  to  the  residue  of 
real  estates  devised  upon  express  trust  for  .particular  purposes,  after 
those  purposes  have  been  answered,  where  the  surplus  is  not  dispos- 
ed of,  and  the  real  and  personal  funds  are  kept  distinct. 

In  Randall  v.  Bookey,(s)  lands  were  devised  to  trustees  in  trust  to 
permit  the  testator's  wife  to  receive  the  profits  for  life,  and  after- 
wards to  sell  them,  and  to  pay  out  of  the  proceeds  1501.  to  J.  S.,  and 
100Z.  to  one  Randall  (the  testator's  heir;)  and  the  wife  was  ap- 
pointed executrix,  with  a  legacy.  The  heir  claimed  the  surplus  pro- 
duce from  the  sale  of  the  lands,  and  it  was  so  decreed  ;  the  Court 
remarking,  that  the  devise  was  in  the  nature  of  a  mortgage,  and  that 
the  heir  paying  the  legacies  must  have  the  land,  although  he  had  a 
particular  legacy  out  of  it. 

In  the  last  case,  it  is  obvious  that  no  person  could  take  the  lands 
subject  to  the  legacies,  except  the  heir.  The  devisees  were  pre- 
cluded, as  the  estate  was  expressly  given  to  them  upon  trust  to  an- 
swer particular  purposes.  The  executrix  could  not  take  the  net 
proceeds,  as  they  formed  no  part  of  the  personal  residue,  from  which 
even  she  was  excluded  by  the  gift  of  a  legacy  ;  and  as  to  the  testator's 
next  of  kin,  there  was  no  pretence  for  their  claim,  since  the  conver- 
sion of  the  real  fund  was  only  partial,  merely  for  the  purpose  of  pay- 
ing the  two  legacies. 

The  next  case  which  presents  itself  is  Hobart  v.  The  Countess  of 
Suff"olk,(t)  in  which  Serjeant  Maynard  devised  to  three  persons  all 
his  real  estates  upon  the  trusts  after  mentioned,  viz.  after  the  death 
of  his  wife  to  convey  part  of  them  to  Sir  H.  Hobart  and  Elizabeth 
his  wife  for  their  lives  and  the  life  of  the  survivor,  the  remainder  to 
her  first  son,  (afterwards  to  Sir  John  Hobart)  for  ninety-nine  years, 
if  he  so  long  lived,  remainder  to  his  issue  male ;  and  also  to  convey 
other  part  of  his  estates  to  his  grand-daughter  Mary  Maynard,  (af- 
terwards Countess  of  Stamford)  for  life  ;  remainder  to  her  issue  male, 
with  a  cross -remainder  on  the  failure  of  issue  male  of  either  ;  and  he 
made  no  disposition  of  the  reversion  in  fee  of  either  part  of  his  es- 
tates, which  was  claimed  by  the  persons  to  whom  the  lands  were 
devised  in  trust;  but  the  testator's  heir  insisted,  that  he  was  entitled 
to  it  as  a  resulting  trust,  and  so  the  Court  decided. 

The  principle  of  the  last  case  seems  to  be  the  same  which  govern- 
ed those  which  preceded,  viz.  that  the  devisees  could  not  claim  the 
estates  beneficially  contrary  to  the  express  terms  of  the  devise,  un- 
der which  they  derived  their  title,  the  disposition  to  them  being  ex- 

(«)  ^'U  ^u<  10"  (0  2  Vern.  644.  Ed.  by.  Raithby. 


SECT.  I.]  into  Personal  Estate.  349 

pressly  upon  trust. (w)  The  Court  therefore  declared,  that  the  tes- 
tator did  not  intend  the  devisees  of  the  legal  inheritance  to  take  the 
lands  in  preference  to  his  heirs,  if  Sir  JohnHobart  and  Lady  Stam- 
ford, both  died  without  issue  male. 

In  Wych  v.  Sir  John  Packington,(x)  a  case  determined  on  appeal 
to  the  House  of  Lords,  Sir  Herbert  Perrot  bequeathed  to  his  dear 
wife  and  executrix,  a  rent-charge  of  200/.  a  year,  to  be  received  by 
her,  her  executors,  administrators,  and  assigns,  out  of  part  of  his  real 
estates ;  but  upon  special  trust  and  confidence  that  she,  his  executrix, 
her  executors,  &c.  might  be  supplied  with  money  out  of  the  rents 
and  profits  for  payment  of  all  his  debts  and  legacies  :  for  which  pur- 
poses he  gave  to  his  said  executrix,  her  executors,  &c.  a  lease  for 
thirteen  years  of  the  said  rent-charge,  to  begin  within  six  months  af- 
ter his  death.  The  testator  then  gave  to  his  wife  and  executrix/or 
her  own  benefit  all  his  lands  in  the  county  of  Hereford,  for  life,  in 
augmentation  of  her  jointure.  .-  The  question  was,  whether  the  rent- 
charge  was  a  beneficial  devise  to  the  wife  or  solely  given  to  her  for 
payment  of  debts  and  legacies  in  aid  of  the  personal  fund"?  And 
the  Lords  confirmed  the  first  decree,(y)  pronounced  in  the  cause, 
which  declared,  that  the  rent-charge  was  not  a  beneficial  devise  to 
the  wife,  but  that  there  was  a  resulting  or  implied  trust  for  the  heir 
after  the  discharge  of  such  of  the  debts  and  legacies  as  the  personal 
estate  should  be  deficient  in  satisfying. 

The  grounds  of  the  last  decision  appear  to  be  these  :  1st,  that  the 
devise  was  not  made  to  the  wife  in  her  private  character,  but  as  ex- 
ecutrix; whence  an  inference  arose  that  the  only  motive  for  the  grant 
was  to  answer  the  purposes  of  the  will :  2dly,  that  such  inference 
was  reduced  to  certainty  by  the  declaration  of  the  testator,  that  the 
devise  of  the  rent-charge  was  made  upon  special  trust  to  pay  debts 
and  legacies.  And  3dly,  from  the  consideration,  that  what  the  tes- 
tator intended  for  his  wife  beneficially,  he  so  declared ;  as  in  the 
instance  of  the  devise  in  augmentation  of  her  jointure ;  to  which  may 
be  added  the  circumstance  of  the  testator  postponing  the  commence- 
ment of  the  rent-charge  until  six  months  after  his  death,  which  he 
could  not  reasonable  be  supposed  to  have  done  in  consistency  with 
an  intention,  that  it  was  to  be  for  his  wife's  use ;  but  such  postpone- 
ment is  quite  consistent  with  the  construction  of  the  grant  being 
purely  made  in  aid  of  the  personal  estate  for  the  payment  of  debts 
and  legacies. 

The  following  is  not  merely  an  authority,  that  a  devise  upon  trust 
of  lands  to  pay  debts  and  legacies  does  not  preclude  the  heir  from 
so  much  of  the  estate,  as  remains  after  those  purposes  are  satisfied  ; 
but  also,  that  if  one  of  the  legacies  be  given  to  him,  such  circum- 
stance alone  will  not  alter  his  right;  upon  the  principle,  that  no 
disposition  having  been  made  of  the  residuary  real  estate,  the  heir 
takes  it  by  gift  of  law,  and  not  in  consequence  of  the  testator's  in- 
tention. 

Thus  in  Starkey  v.  Brooks,(z]  Philip  Starkey  devised  his  lands  to 

f «)  1  Atk.  620. 

(jc}  3  Bro.  Parl.  Ca.  44.  8vo.  ed.  and  see  Hattiday  v.  Hudson,  3  Ves.  jun.  210. 
stated  infra,  p.  353.  (y)  3  Bro.  Parl.  Ca.  p.  47. 

(z)  1  P.  Will.  390.     Randall  v.  Bookey,  stated  supra,  p.  348.  S.  P. 

VOL.  i.  Y  y 


350  Conversion  of  Heal  [Cn.  XL 

two  persons,  in  trust,  that  they  or  the  survivor  should  sell  them  for 
the  best  price,  and  pay  with  the  produce  his  debts,  legacies,  and  fu- 
nerals. Two  of  the  legatees  were  his  cousins  and  co-heirs.  The 
lands  exceeded  by  500Z.  the  debts,  &c.  and  the  question  was,  whether 
that  sum  belonged  to  the  devisees  in  trust,  or  to  the  co-heirs?  And 
Lord  Cowper  decided  in  favour  of  the  heirs,  notwithstanding  it  was 
objected  that  the  legacies  given  to  them  implied  that  they  were 
meant  to  have  nothing  more. 

The  case  of  Stonehouse  v.  Sir  John  Evelyn,(d}  which  will  be  next 
stated  is  one  of  a  particular  kind.  The  question  in  it  was  between 
the  testator's  heir  and  particular  legatees ;  and  is  an  authority  for 
the  proposition,  that  where  real  estate  is  given  in  trust  to  pay  par- 
ticular legacies,  with  a  gift  of  other  legacies  should  the  proceeds 
from  the  sale  of  the  land  exceed  the  amount  of  the  former,  suppose 
by  500Z.  if  these  proceeds  exceed  the  first  class  of  legacies,  but  do 
not  amount  to  5001.  the  excess  will  belong  to  the  heir  as  a  resulting 
trust,  and  not  be  applicable  to  a  proportional  discharge  of  the  se- 
cond class  of  legacies.  The  principle  is  this,  that  the  gift  of  the  lat- 
ter legacies  being  made  to  depend  upon  the  event  of  the  real  estate 
producing  an  excess  of  5001.;  as  that  event  did  not  happen,  the  real 
excess  was  undisposed  of,  and  necessarily  resulted  to  the  heir ;  the 
devisee  in  trust  having  no  right  to  it,  as  appears  from  the  preceding 
cases. 

In  Stonehouse  v.  Sir  John  Evelyn,  (the  case  last  mentioned,)  Lady 
Wych  being  seised  in  fee  of  a  rent-charge  of  38Z.  16*.  devised  it  to 
Thomas  Dalton  in  trust,  to  pay  several  annuities  (which  had  deter- 
mined,) and  then  three  legacies  to  .#.,  B.  and  C.,  amounting  to  8001. 
But  if  the  rent-charge  sold  for  1000J.  the  testatrix  gave  additional 
legacies  of  100J.  each  to  B.  and  C.  The  suit  was  instituted  by  A. 
for  a  sale  of  the  rent-charge,  and  payment  of  his  legacy.  And  the 
question  was,  to  whom  the  surplus  would  belong,  if  it  exceeded  8001. 
but  was  less  than  1000J.?  It  was  claimed  by  B.  and  C.  in  part  pay- 
ment of  their  further  legacies.  But  Sir  Joseph  Jekytt,  M.  R.  said, 
that  as  nothing  was  declared  in  the  will  to  that  effect,  to  admit  such 
a  claim  would  be  to  make  a  ne\v  will ;  wherefore,  as  to  all  the  money 
arising  from  the  estate  to  be  sold,  and  not  disposed  of  by  the  testa- 
trix, there  must  be  a  resulting  trust  for  the  heir  ;  so  that  if  the  rent- 
charge  be  sold  for  more  than  80QL  but  under  1000Z.  the  difference 
must  be  paid  to  the  heir  at  law. 

The  next  case  we  shall  mention  is  Sherrard  v.  Lord  Harbo- 
rough,(b)'m  which  Bennet,  Earl  of Harborough,  devised  his  manors, 
advowsons,  &c.  to  persons  in  trust  to  pay  out  of  the  rents  and  profits 
an  annuity  of  1000/.  to  the  then  Earl,  the  testator's  eldest  son  and 
heir,  for  life,  and  to  invest  the  surplus  rents  to  accrue,  whilst  his  son 
lived,  in  the  purchase  of  lands  to  be  settled,  after  his  son's  death, 
upon  his  (the  son's)  first  and  other  sons  successively  in  tail,  with 
remainder  over.  One  of  the  questions  was,  in  whom  the  right  of 
presentation  to  the  advowsons  belonged  during  the  life  of  the  testa- 
tor's heir  the  then  Earl.  And  the  Court  declared  the  right  to  be  in 
the  Earl  as  heir  of  the  testator. 

The  reasons  for  that  opinion  seem  to  be  these ;  the  devisees  of 
(a)  3  P.  Will.  252.    See  Chap.  XX,  s.  13.  (A)  Ambl.  165. 


SECT.  I.]  into  Personal  Estate.  351 

the  legal  estate  had  no  claim,  as  the  property  was  given  to  them 
upon  trust.  The  heir  was  in  the  same  condition  as  to  his  title  under 
the  will,  since  nothing  was  given  to  him  but  a  rent-charge  for  life ; 
and  the  persons  in  remainder  were  excluded,  as  nothing  was  limited 
to  them  until  after  the  death  of  the  heir.  Hence  it  followed  that 
the  right  of  presentation  during  the  heir's  life  was  a  fruit  of  the 
estate  undisposed  of,  which  necessarily  resulted  to  him. 

The  reader  is  here  referred  to  the  cases  of  Robinson  v.  Taylor, 
Chitty  v.  Parker,  Hill  v.  Cock,  and  Dixon  v.  Dawson,  stated  in 
section  3  of  this  chapter,(c)  and  which  are  instances  of  the  heir's 
being  entitled  to  the  surplus  produce  of  the  sale  of  lands. 

3.  After  discussing  the  title  of  the  heir  and  devisee  to  the  undis- 
posed surplus  of  real  estate,  remaining  after  the  purposes  to  which 
it  was  liable  were  satisfied,  what  remains  for  consideration  is,  their 
rights  to  such  of  the  interests'  affecting  the  lands  as  lapse  or  fail  by 
the  deaths  of  parties  or  otherwise. 

FIRST,  with  respect  to  the  title  of  the  devisee. 

It  is  a  consequence  from  what  has  been  detailed  in  regard  to  the 
rights  of  the  heir  and  devisee  to  the  undisposed  surplus  of  real 
estate,  that  when  the  devisee  takes  the  estate  as  a  beneficial  gift, 
he  will  be  entitled  to  all  such  charges  affecting  it  as  a  lapse, (d) 
or  fail. 

Thus  in  Jackson  v.  Hurlock,(e)  Sir  John  Hartopp  devised  in  fee 
to  Sarah  Marsh  his  manors  of  B.  and  C.,  subject  to  and  charged 
with  the  payment  of  any  sum  of  money  not  exceeding  10,OOOZ.  in 
favour  of  such  persons  as  he,  by  a  written  memorandum,  should 
direct.  He  afterwards  appointed  6000Z.  part  of  the  sum,  to  charities. 
Such  appointment  being  void,  the  question  was,  whether  the  heir 
or  devisee  should  have  the  benefit  of  the  failure  "?  And  Lord  Nor- 
thington  decided  in  favour  of  the  latter. 

Yet  a  case  may  occur,  in  which  the  estate  of  the  devisee  may  be 
charged  with  a  sum  of  money  that  cannot  be  applied  according  to 
the  intention  of  the  testator,  as  when  the  object  is  a  charity;  and 
notwithstanding  the  failure,  still  the  devisee  will  be  under  the  ne- 
cessity of  paying  the  money  to  which  the  heir  will  be  entitled  as  so 
much  real  estate  undisposed  of.  Suppose,  then,  a  devise  of  land 
to  be  made  to  A.  he  paying  1000Z.  to  the  testator's  executors,  which 
sum,  forming  part  of  the  testator's  residuary  estate,  is  bequeathed 
to  charities ;  the  bequest  of  the  money  for  such  a  purpose  would  be 
void;  yet  the  devisee  of  the  land  would  be  obliged  to  pay  it,  because 
the  condition  requiring  him  to  make  the  payment  to  the  executors, 
and  not  to  the  charities,  is  good,  and  must  be  performed.  The 
payment  of  the  sum  is  the  price  and  consideration  of  the  devise, 
and  as  the  money  is  so  much  real  estate  undisposed  of,  there  is  no 
person  but  the  heir  can  make  a  good  title  to  it.(y) 

SECOND,  With  respect  to  the  title  of  the  heir. 

It  only  remains  to  be  observed  upon  this  subject,  that  as  the  heir 
is  entitled  to  every  interest  in  freehold  estate  which  is  originally  un- 
disposed of,  or  becomes  so  by  accident,  if  the  devise  be  made  in 

(c)  P.  360,  &c.  infra.  (d}  4  Ves.  811. 

(e)  Ambl.  487.  495.  2  Eden.  263.  S.C.  See  also  Wright  v.  Row,  1  Bro.  C.  C. 
61.  and  4  Ves.  810.  (/)  Arnold  v.  Chafiman,'l  Ves.  sen  108. 


352  Conversion  of  Real  [Cn.  XI. 

trust  to  pay  legacies,  so  that  the  devisee  is  merely  a  trustee,  and  not 
entitled  to  the  estate  beneficially,  and  some  of  the  legacies  are  void 
as  to  the  land,  in  being  given  to  charity,  or  lapse  by  the  deaths  of 
legatees  during  the  life  of  the  testator,  or  before  the  legacies  be- 
come due,  they  will  sink  into  the  estate  for  the  benefit  of  the  heir, 
the  person  entitled  to  the  estate,  subject  to  the  charges  ;(g)  but 
with  this  qualification,  that  if  the  devise  be  in  trust  to  pay  legacies 
generally,  then  (as  has  been.  noticed)  the  lapse  or  other  failure  of 
any  of  them,  will  not  accrue  to  the  heir,  if  the  whole  fund  be  ne- 
cessary to  discharge  the  remaining  legacies;  but  that  if  the  devise 
be  in  trust  to  pay  particular  sums  of  money  to  individuals,  then 
the  heir  will  be  entitled  to  such  of  them  as  fail  by  lapse  or  other- 
wise. (A) 

The  conversion  of  the  real  estate,  so  far  as  previously  considered, 
has  been  merely  to  the  extent  of  answering  particular  purposes  ex- 
pressed by  the  testator,  and  where  no  disposition  was  made  of  the 
surplus  of  the  lands.  We  shall  now  proceed  to  inquire  — 

SECT.  II.  What  will  and  will  not  amount  to  a  disposition  of  the 
produce  from  a  sale  of  the  real  estate,  under  the  terms  of  the 
residuary  clause,  upon  which  the  right  of  the  heir  or  resi- 
duary legatee,  to  them  depends. 

In  discussing  this  subject,  it  will  be  convenient  first  to  consider  — 

1.  When  the  produce  from  .the  sale  of  lands  will  not  pass  under  a 
residuary  bequest  of  the  personal  estate,  whether  the  disposition  be 
made  by  will  or  codicil.  And  — 

FIRST,  When  the  residuary  personal  bequest  is  contained  in  the 
will  devising  the  real  estate. 

Where  a  testator  gives  his  real  and  personal  property  in  trust  to  be 
sold  for  particular  purposes,  and  does  not  specifically  dispose  of  the 
surplus  proceeds,  but  makes  a  general  residuary  bequest  of  his  per- 
sonal estate,  such  a  disposition  will  not  include  the  produce  from  the 
sale  of  the  land,  in  the  absence  of  a  contrary  intention  expressed  or 
inferred  from  the  will,  and  for  this  reason;  the  surplus  of  the  real 
estate  is  not  made  personal  ;  it,  therefore,  does  not  fall  within  the 
terms  of  the  bequest.  The  conversion  of  the  lands  into  personalty 
is  merely  to  answer  particular  purposes,  which,  when  performed,  the 
residue,  continuing  land  and  being  undisposed  of,  necessarily  results 
to  the  heir.  So  that  if  A.  devise  his  freehold  and  personal,  or  his 
freehold  estate  to  B.  in  trust  to  sell  and  apply  the  proceeds  in  pay- 
ment of  legacies,  making  no  further  disposition  of  the  real  produce, 
and  then  bequeath  the  residue  (of  his  estate,  (i)  or  of  his  personal 
estate  t6  C.,  the  net  surplus  of  his  real  estate  will  not  pass  to  C.  for 
the  reasons  before  mentioned,  but  it  will'  be  a  resulting  trust  for  the 
heir  of  the  testator.  To  prove  this  the  following  authorities  are  pro- 
duced: 

In  Berry  v.  Usher,(k)  James  Plomer  devised  all  his  real  and  per- 
sonal estate  to  John  Usher^  in  trust  to  pay  the  rents  of  the  one  and 


3  Bro.  C.  C.  355.  (A)  17  Ves.  466.  and  sufira,  p.  285. 

(i)  Dirty  v.  Legard,3P.  Will.  22.  in  note.  Ed.  by  Cox,  and  1  Bro.  C.  C.  514. 
(A-)  11  Ves.  87. 


SECT.  II.]  into  Personal  Estate.  353 

the  interest  of  the  other,  to  Susannah  Berry  for  life,  and  then  to  sell 
both  funds  j  out  of  the  produce  of  which  he  gave  several  legacies, 
and  appointed  Usher  and  Berry  joint  residuary  executrix  and  ex- 
ecutor. The  question  was,  whether  so  much  of  the  proceeds  of  the 
real  estate,  as  remained  after  the  purposes  of  the  will  were  satisfied, 
belonged  to  the  heir  or  residuary  legatees'?  And  Sir  William  Grant, 
M.  R.  determined  in  favour  of  the  heir. 

The  foundation  of  the  decree  was,  that  the  conversion  of  the  real 
into  personal  estate  was  merely  co-extensive  with  the  purposes  ex- 
pressed in  the  will,  viz.  to  pay  the  legacies ;  so  that  the  surplus,  con- 
tinuing land,  could  not  pass  as  personal  estate  under  the  appoint- 
ment of  residuary  executors. 

The  last  case  was  shortly  followed  by  a  similar  decision  of  the 
same  Judge  in  Wilson  v.  Major  ;(l]  a  case,  however,  in  which  the 
terms  of  the  residuary  clause  might  have  included  the  net  proceeds 
of  the  real  estate,  had  not  a  contrary  intention  in  the  testator  appear- 
ed. There,  Thomas  Major  devised  a  copyhold  estate  to  his  wife 
Dorothy,  in  trust  to  sell  and  invest  the  proceeds  upon  real  or  govern- 
ment .securities;  the  interest  of  which  he  gave  to  her  for  life.  He 
further  bequeathed  to  her  all  his  effects  for  her  support,  &c.  The 
copyhold  estate  was  not  sold ;  and  the  wife  being  dead,  the  question 
was,  whether  it  belonged  to  the  testator's  heir,  or  to  the  persons 
claiming  under  the  wife?  which  depended  upon  this,  whether  the 
capital  to  be  produced  from  the  sale  of  the  estate  passed  to  her  un- 
der the  residuary  clause1?  And  Sir  William  Grant  determined,  that 
the  heir  was  entitled  to  it,  upon  the  principle  that  the  testator  could 
not  intend  to  give  to  his  wife,  by  a  residuary  bequest  in  form  properly 
importing  a  disposition  of  personal  estate  only,  an  absolute  interest 
in  a  fund  produced  from  the  sale  of  real  property,  when  he  had  pre- 
viously bequeathed  to  her  the  annual  income  of  it  merely  for  life. 
The  copyhold  estate,  therefore,  being  undisposed  of,  necessarily  re- 
sulted to  the  customary  heir. 

Similar  to  the  last  was  the  case  ofHalliday  v.Hudson,(m)  where 
Robert  Halliday,  after  appointing  his  nephew  Hudson  sole  executor 
of  his  will  in  trust  to  execute  it  in  the  following  manner,  devised  to 
him  all  his  freehold  and  leasehold  estates,  except  a  house  which  was 
subject  to  a  life-interest,  and  the  reversion  of  which  he  gave  to  his 
nephew  and  heir,  R.  Halliday,  for  life,  remainder  over.  He  then  gave 
Hudson  his  personal  estate,  "  to  enable  him  to  discharge  all  his  debts 
and  legacies ;"  and  bequeathed  two  legacies  to  his  female  servant, 
which  he  considered  as  adebt,  and  declared  that  his  situation  was  such 
as  obliged  him  to  make  a  will,  otherwise  his  heir  would  take  all  his 
lands,  and  his  debts  remain  unpaid,  of  which  he  specified  two,  amount- 
ing together  to  WOOL,  and  directed  his  executor  to  pay  them,  with  a 
few  others.  The  rest  and  residue  he  gave  to  his  executor  before  named. 
The  testator  made  a  codicil,  naming  Halliday  an  executor  with  Hud- 
son; gave  him  100  guineas,  and  appointed  him  joint  residuary  lega- 
tee with  Hudson.  There  were  only  two  witnesses  to  the  codicil,  so 
that  it  could  not  affect  the  freehold  estate.  Halliday,  the  heir, 

(/)  11  Ves.  205.  and  see  8  Ves.  485-495. 

(m)  3  Ves.  jun.  210.  and  see  Wychv.  Packington,  sufira,  p.  349.  also,  Kellett  v. 
Kellett,  1  Ball.  &  Beat.  533.  5.  P. 


354  Conversion  of  Real  [Cn.  XI. 

claimed  the  land  subject  to  the  debts,  which  was  resisted  by  Hudson, 
on  the  ground  that  it  passed  to  him  by  the  residuary  clause.  But 
Lord  Rosslyn  decided  in  favour  of  the  heir ;  and  that,  under  the  par- 
ticular circumstances,  the  beneficial  interest  in  the  freehold  estate 
did  not  pass  with  the  residuary  personal  property. 

The  grounds  of  his  Lordship's  opinion  were  these  :  that  the  words 
"rest  and  residue,"  were,  in  the  abstract,  of  ambiguous  construction  ; 
but  that  the  sense  in  which  they  were  used  was  explained  by  the 
context ;  for  it  appeared  that  the  only  motive  of  the  testator  in  af- 
fecting his  real  estate  was  to  secure  the  payment  of  his  debts,  and 
the  land  was  devised  to  Hudson  as  executor,  and  upon  express  trust 
for  that  purpose  ;  which,  with  the  circumstance  of  the  testator  evinc- 
ing no  disinclination  to  his  heir,  nor  intention  to  disinherit  him, 
were  held  sufficiently  demonstrative  of  the  testator's  meaning  not  to 
include  the  surplus  of  his  real  property  in  the  residuary  disposition, 
but  merely  to  create  a  charge  upon  that  fund,  in  favour  of  his  cre- 
ditors, in  aid  of  his  personal  estate. 

The  same  reasoning  produced  the  decree  in  Maugham  v.  Ma- 
*on,(n)  where  Charles  Prior  devised  his  freehold  chambers  in  Lin- 
coln's Inn  to  trustees,  in  trust  to  sell  and  apply  the  produce  towards 
payment  of  legacies ;  and  after  making  some  specific  bequests  of 
stock,  and  giving  two  pecuniary  legacies,  he  bequeathed  the  residue 
of  his  personal  estate,  of  what  nature  or  kind  soever,  after  payment 
of  his  debts,  legacies,  and  funeral  expenses,  to  his  trustees,  their  ex- 
ecutors, &c.  upon  trust  to  convert  it  into  ready  money,  and  invest  it 
in  the  purchase  of  real  property,  to  be  settled  by  them  to  the  sepa- 
rate use  of  his  niece  Cecilia  Maugham  for  life,  remainder  to  her  first 
and  other  sons  successively  in  tail  male,  with  remainders  over.  The 
personal  estate  was  more  than  sufficient  to  pay  debts,  legacies,  fu- 
neral, and  testamentary  expenses;  and'  Cecilia  being  dead,  leaving 
a  grandson,  the  question  was  between  him,  claiming  under  the  resi- 
duary clause  the  produce  from  a  sale  of  the  chambers,  and  the  tes- 
tator's heir ;  the  former  claiming  them  as  personal  property,  and 
therefore  as  bequeathed,  and  the  latter  claiming  them  as  real  pro- 
perty, and  not  passing  by  the  residuary  clause ;  upon  the  principle, 
that  the  conversion  was  directed  for  the  sole  purposes  of  discharging 
debts  and  legacies  in  aid  of  the  personal  fund ;  which  being  suffi- 
cient to  pay  all  those  obligations,  the  chambers  or  their  produce 
could  not  pass  under  a  bequest  merely  disposing  of  personal  estate  ; 
and  of  that  opinion  was  Sir  William  Grant,  M.  R.  who  thus  express- 
ed himself  upon  the  general  question  :  "  This  is  a  general  bequest 
of  the  residue  of  the  testator's  personal  estate  ;  and  the  question  is, 
what  was  meant  to  be  included  under  that  description.  Properly 
speaking,  nothing  is  the  personal  estate  of  a  testator  that  was  not  so 
at  his  death.  He  may  certainly  so  express  himself,  as  to  show  that 
something  else  was  intended ;  but  where  there  is  nothing  but  a  di- 
rection to  sell  land,  with  application  of  the  money  to  a  particular 
purpose,  and  a  subsequent  bequest  of  the  rest  and  residue  of  the 
personal  estate,  I  know  of  no  case  in  which  it  has  been  held  that  the 
surplus,  after  the  particular  purpose  is  answered,  forms  part  of  the 

(n)  1  Ves.  &  Bea.  410.  and  see  Hutchesonv.  Hammond,  3  Bro.  C.  C.  129-143. 


SECT.  II.]  into  Personal  Estate.  355 

personal  estate,  so  as  to  pass  by  the  residuary  bequest.  The  mere 
disposition  of  the  residue  of  personal  estate  can  never  solve  the 
question,  what  is  personal  estate  *?  The  clause  may  be  so  conceiv- 
ed, as  to  show  the  sense  in  which  those  words  are  used ;  but  here  is 
nothing  more  than  those  words,  unaccompanied  with  any  thing  ex- 
planatory of  the  sense  in  which  they  were  used." 

So  in  Dunnage  v.  White,(o)  David  Lewis  devised  and  bequeathed 
to  his  trustees  a  freehold  estate  at  B.,  upon  trusts  therein  mentioned ; 
and  after  giving  some  legacies,  he  devised  and  bequeathed  the  resi- 
due "  of  his  estate  and  effects  whatsoever  and  wheresoever,  of  what 
nature  or  kind  soever,"  to  his  said  trustees  and  executors,  upon  trust 
to  sell  his  household  goods  and  stock  in  trade ;  to  collect  all  the 
debts  owing  to  him,  and  to  divide  them  into  six  parts,  which  he  gave 
to  his  nephews  and  nieces.  The  question  was,  whether  a  freehold 
farm  at  C.  passed  by  the  residuary  clause.  And  Sir  Thomas  Plu- 
mer,  M.  R.,  determined,  that  although  the  real  property  passed  to 
the  trustees  under  the  general  words  in  the  beginning  of  the  clause, 
yet,  as  there  was  no  trust  declared  of  it,  nor  any  intention  to  be  col- 
lected from  the  will,  that  the  testator  meant  to  comprise  and  bequeath 
it  as  personal  estate,  and  the  trusts  in  the  residuary  bequest  merely 
regarded  the  personal  fund,  it  did  not  pass  by  the  residuary  clause  ; 
and  his  Honour  declared  in  favour  of  the  testator's  heir. 

SECOND,  when  the  residuary  bequest  is  inserted  in  a  codicil  to  the« 
will. 

The  same  observations  apply  to  a  general  disposition  of  the  per- 
sonal residue  by  a  codicil  duly  attested,  to  pass  lands,  as  to  such  a 
disposition  contained  in  the  same  will,  devising  the  real  estate  to  be 
sold  to  answer  special  purposes,  and  not  specifically  disposing  of  the 
net  proceeds ;  so  that  if  a  testator  devise  his  real  and  personal 
estates,  or  his  real  estate,  in  trust  to  be  sold  to  answer  particular 
objects,  and  omit  to  make  any  disposition  of  the  produce  ultra  those 
objects,  other  than  in  bequeathing  his  residuary  personal  estate  by 
a  codicil  sufficiently  attested  to  pass  lands,  that  produce  will  not  be 
included  in  such  a  general  bequest ;  since  what  remains  of  the 
money  arising  from  the  sale,  after  answering  the  special  purposes 
to  which  it  was  applicable,  is  land,  and  not  personal  estate,  and  there- 
fore not  within  the  terms  of  the  bequest. 

So  also,  if  the  codicil  were  not  duly  attested  to  pass  freehold  pro- 
perty, and  the  produce  from  its  sale,  after  answering  the  purposes 
of  the  will,  be  expressly  disposed  of  by  the  codicil ;  yet  that  pro- 
duce cannot  pass  by  such  instrument,  because  the  conversion  of 
the  real  into  personal  estate  being  merely  partial,  viz.  to  answer 
particular  purposes,  the  net  proceeds  do  not  loose  their  original 
quality,  but  continue  land  ;  they  therefore  can  only  pass  by  a  will 
or  codicil  attested  as  the  law  requires(/>)  for  the  disposition  of  real 
estate. 

Accordingly,  in  Sheddon  v.  Goodrich,(q)  the  testator  devised  all 
his  real  estates  in  the  islands  of  Bermuda  to  his  wife  for  life,  with  a 
direction  to  his  executors  to  sell  all  his  real  and  personal  estates 

(o)  1  Jac.  &  Walk.  583.  (/i)  29  Car.  II.  chap.  3. 

(?)  8  Ves.  481,  495.  and  see  Hooher  v.  Goodwin,  18  Ves.  156-166.  S.  P.  1  Jacob. 
R.  375. 


356  Conversion  of  Real  [Cn.  XI. 

after  his  wife's  death,  and  pay  to  his  three  daughters  GOOOZ.  sterling. 
The  testator  appointed  his  son  residuary  legatee,  bequeathing  to  him 
the  residue  of  his  estate  which  should  remain  in  the  hands  of  his 
executors  ;  and  without  making  any  disposition  of  the  produce  from 
the  sale  of  his  real  property,  after  payment  of  the  above  legacies. 
The  testator  made  another  will,  not  properly  executed,  to  pass  free- 
hold lands,  by  which  he  gave  the  residue  of  his  estates,  wherever 
situate,  for  the  benefit  of  his  children.  He  also  by  a  codicil,  not 
duly  attested,  to  pass  lands,  devised  the  residue  of  his  estates  for  the 
use  of  his  children,  who  under  the  two  last  instruments  claimed  the 
produce  from  the  sale  of  the  lands,  after  satisfaction  of  the  legacies, 
in  opposition  to  the  heir  at  law.  But  Lord  Eldon,  C. ,  determined 
the  question  in  favour  of  the  heir,  upon  the  principle,  that  the  real 
estate  being  merely  converted  into  personal  for  the  purpose  of  pay- 
ing the  legacies,  what  remained  of  the  produce  from  the  sale,  after 
their  satisfaction,  was  land,  and  could  not  pass  by  the  second  will  or 
codicil,  in  consequence  of  neither  of  them  having  been  properly  at- 
tested to  dispose  of  real  property. 

It  appears  from  what  has  been  said,  that  the  reason,  why  the  pro- 
duce from  the  sale  of  lands  will  not  pass  by  a  residuary  clause  dis- 
posing of  personal  estate,  is,  that  the  real  was  not  converted  into 
that  species  of  property,  and  therefore  did  not  fall  within  the  terms 
of  the  bequest.  But  since  a  testator  may  decide  what  shall  be  the 
nature  of  his  property  after  his  death,  and  consequently  pass  his  real 
estate  as  personal  in  a  residuary  bequest  of  the  latter  fund,  we  shall 
proceed  to  consider,-^- 

2.  Under  what  circumstances  the  proceeds  from  the  sale  of  lands 
have  been  held  to  pass  with,  and  as  part  of  personal  estate,  in  a  re- 
siduary bequest  of  personalty. 

The  blending  and  disposing  of  the  real  proceeds  with  the  per- 
sonal estate  have  been  constantly  considered  to- afford  an  argument 
for  the  complete  conversion  of  the  real  estate  into  personal ;  but 
that  circumstance  is  not  conclusive.  The  charge  may  be  sub  modo 
only,  viz.  to  answer  special  purposes ;  in  which  case,  as  before  ap- 
pears, the  surplus  produce  of  the  lands  will  continue  real  estate. 
If,  however,  no  particular  motive  be  apparent,  to  which  can  be  as- 
cribed an  intention  to  change  the  nature  of  the  real  fund,  and  the 
testator  has  declared  or  shown  an  intent  that  he  meant  to  dispose  of 
his  real  as  personal  estate,  then  the  land  will  pass  under  a  residuary 
personal  clause  as  personal  estate. (r) 

Such  an  instance  occurred  in  the  case  of  Malldbar  v.  Mallabar.(s) 
The  testator  devised  and  bequeathed  all  his  real  estates  to  his  sister, 
upon  trust  to  sell  and  pay  his  debts ;  and  out  of  the  remainder  of 
the  purchase  money,  to  discharge  several  legacies,  one  of  which, 
500J.,  was  given  to  his  heir.  And,  after  and  subject  to  debts  and 
legacies,  he  gave  the  residue  of  his  personal  estate  to  his  said  sister, 
whom  he  appointed  executrix.  The  question  was,  whether  there 
was  a  resulting  trust  for  the  heir  of  the  money  arising  from  the  sale 
of  the  real  estate,  after  payment  of  the  debts  and  legacies  ?  And 
Lord  Talhot  held,  that  the  testator  had  made  all  his  property  per- 
sonal ;  or  rather,  he  inferred  from  the  purpose  of  the  testator,  as  far 

(r)  2  Scho.  &  Lefroy,  545.  («)  Forrest,  78.     1  Bro.  C.  C.  509. 


SECT.  II. I  into  Personal  Estate.  357 


as  it  could  be  collected  from  the  will,  that  the  testator  meant,  by  the 
residuary  clause,  to  describe  not  only  money  strictly  personal  estate, 
but  money  arising  from  the  sale  of  the  real  property.  His  Lord- 
ship made  that  inference  from  the  circumstance  of  the  heir  having 
the  legacy  of  500Z.  out  of  that  very  money  ;  and  because,  if  a  diffe- 
rent construction  were  made,  the  testator's  sister,  his  residuary  lega- 
tee and  executrix,  (to  whom  he  clearly  intended  to  give  a  beneficial 
interest)  would  have  taken  nothing  but  a  troublesome  office  ;  for,  if 
the  words  "  the  residue  of  the  personal  estate,"  did  not  include  this 
money,  the  personalty  must  have  been  first  applied  to  pay  debts  and 
legacies  in  exoneration  of  the  real  estate  ;  and  then  the  executrix 
would  have  had  an  office  of  trouble  without  the  benefit  intended 
her;  a  consideration  relied  upon  by  Lord  King,  in  the  case  of  Ro- 
gers v.  Rogers. (t)  Under  those  circumstances,  Lord  Talbot  decreed 
to  the  sister  the  whole  residue,  consisting  of  the  net  produce  from 
the  sale  of  the  real  estate,  and  the  residuary  personal  property. 

So  in  Brown  v.  Bigg,(u)  the  testator  being  possessed  of  money  in 
the  funds  and  other  personal  estate,  and  seized  of  freehold  and  copy- 
hold estates,  devised  the  real 'property  to  his  wife  for  life,  remainder 
to  his  godson  John  Bigg  in  tail,  with  remainders  over.  He  also 
gave  to  his  wife  for  life,  his  funded  property,  but  if  she  married 
again,  he  bequeathed  to  her  half  the  dividends  only,  and  the  other 
half  to  his  nephews  and  nieces.  The  testator  then  ordered  and  em- 
powered his  wife  to  sell  (if  she  pleased)  with  the  consent  of  William 
Roberts,  all  his  Gransden  estates,  and  the  crop,  barns,  stock,  furni- 
ture, chattels,  and  effects,  with  all  convenient  speed  ;  and  the  pro- 
ceeds to  be  placed  out  upon  security ;  the  interest  of  which,  as  of 
all  money  due  to  him  on  other  securities  (except  money  in  the  funds,) 
he  gave  to  his  wife  .in  like  manner  as  before  expressed.  He  then 
bequeathed  several  legacies,  and  gave  (after  his  wife's  death  with- 
out issue  by  him)  the  whole  of  his  personal  estate,  principal  and  in- 
terest of  every  kind,  both  on  public  and  private  securities,  not  before 
disposed  of, ,  to  his  nephews  and  nieces,  naming  them,  in  equal 
shares.  Part  of  the  Gransden  estate  having  been  sold  by  the  widow, 
the  produce  was  claimed  both  by  the  heir  and  the  residuary  lega- 
tees ;  the  latter  insisting  that  they  formed  part  of  the  testator's  per- 
sonal estate,  and,  therefore,  passed  by.  the  residuary  bequest  of  the 
personalty;  and  of  that  opinion  was  Sir  •William  Grant,  Master  of 
the  Rolls. 

The  ground  of  his  Honour's  opinion  seems  to  have  been,  that  the 
testator  considered  so  much  of -the  produce  of  his  real  property,  as 
his  widow  might  sell,  to  be  part  of  his  personal-  estate,  which  clear- 
ly appeared  from  the  direction  to  place  the  real  proceeds  upon  secu- 
rity, and  the  disposition  of  them  as,  and  in  the  same  clause  with, 
his  personalty. 

(f)  3  P.  Will.  193.  stated  supra,  p.  345.  and, see  Coningliam  v.  Mellish,  Pre.  Ch. 
31  stated  ante,  p.  347. 

(M)  7Ves.  280.  and  see  Hutchesonv.  Hammond,  3  Bro.  'C.  C.  128.  143-147. 
stated  infra,  sect,  4,  with  observations ;  also  Fletcher  v.  Ashburner,  1  Bro.  C.  C. 
495,  stated  sec.  5.  and  Van  v.  Barnettt  19  Ves.  102-111,  infra,  sec.  5. 

VOL..  I.  Z    Z 


358  Conversion  of  Real  [Cn.  XI 

SECT.   III.  Rights  of  testator's  executors  and  next  of  kin  to  the 
net  produce  from  the  sale  of  lands. 

1.  It  seems,  that  when  it  clearly  appears  to  have  been  the  testa- 
tor's intention  to  impress  upon  his  real  estate  the  character  of  per- 
sonal to  all  intents  and  purposes,  the  mere  appointment  of  an  ex- 
ecutor will  be  sufficient  to  carry  the  former  as  personalty,  either  for 
his  own  benefit,  or  as  a  trustee  for  the  next  of  kin. (a?)  The  reason 
is,  that  an  executor  is  the  testator's  residuary  legatee  appointed  by 
law,  and  entitled  as  such  to  all  the  personal  property  (except  per- 
haps lapsed  interests,)  which  the  testator  has  not  disposed  of.  Hence 
it  follows,  that  when  the  intention  that  the  real  estate  should  be  con- 
verted into  and  pass  as  personal  is  apparent,  the  executor  will,  take 
it  beneficially  in  all  cases,  where  he  is  so  entitled  to  the  personal 
property  ;  and  that  he  will  be  a  trustee-  of  it  for  the  next  of  kin  in 
all  instances,  where  he  is  to  be  considered  as  holding  the  personal 
estate  upon  the  like  trust. (y) 

An  instance  of  this  occurred  in  the  case  of  the  Countess  of  Bris- 
tol v.  Hungerford.(z)  A.  devised  to  trustees  his  freehold  estate,  to 
be  sold  for  the  payment  of  debts,  and  the  surplus  (.if  any)  to  be  con- 
sidered personal  estate,  and  to  go  -to  his  executors,  to  whom  he  gave 
20Z.  a  piece.  Sir  John  Trevor,  M.  R.  declared  that  the  surplus  of 
the  real  and  personal  estates,  were  held  by  the  executors  in  trust 
for  the  next  of  kin  of  the  testator.  A  decree  which  could  only  be 
pronounced  in  regard  to  the  real  proceeds,  upon  the  ground  of  their 
absolute  conversion  into  personalty,  and  passing  as  such  to  the  ex- 
ecutors. 

But  in  Gibbs  v.  Rumsey,(a)  a  question  arose,  whether  the  net 
produce,  of  lands  devised  to  executors  and  trustees  in  the  residuary 
clause,  with  the  personal  estate,  to  be  at  their  disposal  generally  (to 
whom  the  lands  were  previously  devised  upon  trust  to  sell  and  pay 
legacies,  together  with  the  personal  fund)  were  beneficially  given 
to  them  as' residuary  legatees,  or  in  trust  only  in  their  character  of 
trustees  and  executors.  And  Sir  William  Grant  determined  in 
favour  of  their  claim  as  residuary  legatees,  upon  the  ground  of  the 
residuary  clause  amounting  to  an  express  gift  of  the  net  proceeds 
to  them  beneficially;  and  consequently  negativing  any  resulting 
trust  to  the  heir;  and  repelling  any  right  of  the  next  of  kin,  founded 
upon  the  presumption  of  the  executor's  taking  the  real  proceeds  as 
personal  estate  upon  trust,  to  distribute  among  them. 

In  that  case,  Jinn  Clarke  devised-Jijer  real  and  personal  estate  to 
Henry  and  James  Rumsey,  in  trust  to  sell ;  and  out  of  the  produce, 
together  with  her  ready  money,  &c.  and  all  other  her  estate  and 
effects,  she  gave  her  legacies,  two  of  them  being  of  100Z.  to  each 
trustee,  for  his  care  and  trouble.  She  then  gave  the  residue  of  the 
produce  from  the  sale  of  her  real  estate,  and  the  remainder  of  her 
personal  estate,  after  payment,  of  debts,  legacies,  funeral,  and  testa- 
mentary expenses,  to  her  said  trustees  and  executors  "  to  be  dispos- 

(.r)  So  laid  down  by  Sir  William  Grant,  in  Berry  v.  Usher,  II  Ves.  91. 

(y)  See  Robinson  v.  Taylor,  2  Bro.  C.  C.  588-594. 

(z)  2  Vern.  645.  and  see  3  P.  Will.  194.  Ed.  by  Cox,  in  nods,  where  thejreport 
in  Vernon  is  corrected,  and  see  Southouse  v.  Bate,  2  Ves.  &  Bea  396.  S.  P.  supra, 
P.  353-  (a)  2  Ves.  &  Bea.  294. 


SECT.  III.]  into- Personal  Estate.  359 

ed  of  to  such  person  and  persons,  and  in  such  manner  and  form, 
and  in  such  sum  and  sums  of  money,  as  they  in  their  discretion, 
should,  think  proper  and  expedient ;  and  she  appointed  Henry  and 
James  Rumsey  executors.  The  debts  .exceeded  the  amount  of  the 
personal  estate,  and  after  satisfying  the  purposes  of  the  will,  there 
remained  a  surplus  of  the  money  from  the  sale  of  the  lands ;  and  to 
whom  it  belonged. was  the  question *?  Sir  William  Grant,  M.  R.  de- 
clared, that  the  executors  were  entitled  to  it  beneficially  in  the  cha- 
racter of  residuary  legatees,  as  before  mentioned. 

The  grounds  of  his  decree  were  these ;  that  the  first  words  of  the 
residuary  clause  were  an  absolute  gift,  the  mere  circumstance  of 
giving  to  the  legatees  the  description  of  trustees  and  executors  being 
insufficient  to  convert  them  into  trustees,  by  implication  of  that  part 
of  the  property  expressly  bequeathed  to  them. 

2d.  That  the  residue  was  not  given  to  them  upon  trust ;  and  3dly, 
tha-t  the  expressions  <'  to  be  disposed  of  to  such  person  and  persons, 
and  in  such  manner  and  form,  and  in  such  sum  and  sums  of  money, 
as  they  in  their  discretion  should  think  proper  and  expedient,"  were 
too  indeterminate  in  their  object  to  raise  an  implied  trust. 

The  next  subject  to  be  considered  is — 

2.  The  right  of  the  testator's  next  of  kin  to  the  net  proceeds  from 
the  sale  of  real  estate. 

The  title  of  the  next  .of  kin  to  the  clear  produce  from  the  sale  of 
land,  depends  upon  the  testator's  intention  to  convert  that  property 
into  personalty,  to  all  intents  and  purposes.  He  has  the  power  to 
effect  that  change  in  the  nature  of  his  real  estate,  so  as  to  preclude 
all  question  between  his  real  and  personal  representatives  after  his 
death. (6)  Having  then  such  a  right,  the  only  instance,  it  should 
seem,  in  which  the  next  of  kin  can  claim  the  real  proceeds  in  pre- 
ference to  the  heir,  in  the  absence  of  express  declaration  to  that 
effect,  is,  where  a  testator  simply  directs  his  real  estate  to  be  con- 
verted into  personal,  expressing  no  purpose  whatever,  in  reference 
to  which  that  conversion  was  to  be  made,  and  abstaining  from  mak- 
ing any  disposition  of  the  produce,  either  expressly  or  impliedly;  for 
in  such  a  case,  it  seems  to  be  a  necessary  inference,  that  the  sole 
intent  of  directing  a  sale  of  the  real  fund,  was  to  make  it  personal ; 
and  as  the  personal  estate,  if  undisposed  of,  results  to  the  next  of  kin, 
the  produce  of  the  real  property  will  belong  to  them,  as  part  of  the 
personal. (c) 

But  that  reasoning  is  inapplicable  whefe  an  object  for  the  conver- 
sion of  the  realty  into  personal  property,  appears  upon  the  face  of 
the  will,  as  to  pay  debts  and  legacies;  and  the  net  produce  from  a 
sale  of  the  land  is  undisposed  of;  for,  in  such  case,  there  is  neither 
intention  nor  disposition  of  the  .real  proceeds,  after  the  particular 
objects  for  conversation  are  satisfied  ;  and 'a  court  of  equity  will  not 
impute  to  a  testator  an  intent  to  convert  his  real  estate  into  personal, 
for  any  other  purposes  than  those  which  are  expressed.  Hence  it 
follows,  that  the  net  produce  from  the  sale  of  the  estate,  retains  its 
real  quality,  and  results  to  the  heir,  whose  right  will  not  be  affected, 

1  Bro.  C.  C.  506.     Wainivright  v.  Benlows,  Ambl.  583. 
1  Ves.  &  Bea.  175. 


360  Conversion  of  Real  [Cn.  XI. 

although  the  testator  declare  that  the  money  shall  be  considered  as 
part  of  his  personal  estate. (d) 

Thus  in  Hill  v.  Cock,(e)  William  Farnham  devised  to  trustees 
some  of  his  freehold  estates,- together  with  his  personal  property,  in 
trust  to  sell,  and  out  of  the  proceeds,  to  discharge,  in  the  first  place, 
their  expenses ;  and  without  making  any  further  disposition,  he  ap- 
pointed his  trustees  executors.  The  representative  of  the  testator's 
next  of  kin  claimed  the  net  produce  from  the  sale  of  the  lands,  as 
part  of  his  personal  estate,  of  which  no  disposition  was  made.  But 
Lord  Eldon  determined  that  since  the  only  purpose  expressed  for 
converting  the  real  into  personal  estate,  was  that  of  re-imbursing  his 
trustees  their  expenses,  so' much  of  the  residue  as  arose  from  land  was 
to  be  considered  real  estate,  and  belonged  to  the  heir. 

Consistently  with  the  principle  of  the  last,  Lord  Rosslyn  decided 
the  prior  case  of  Chitty  v.  Parker,(f)  in  which  Mrs.  Chitty  devised 
her  freehold  estate  to  be  sold,  and  all  her  property  to  be  converted 
into  money,  using  the  expressions  "  which  I  give  and  devise  as  fol- 
lows." She  then  gave  several  legacies.  But  all  the  purposes  of  the 
will  were  satisfied  without  the  necessity  of  resorting  to  the  real  es- 
tate, which  was  not  sold.  The  next  of  kin  claimed  it  as  money  un- 
disposed of  in  opposition  to  the  heir.  The  Court,  however,  deter- 
mined in  favour  of  the  latter,  upon  the  principle,  that  the  conversion 
of  the  real  estate  into  personal,  was  not  absolute  to  all  intents  and 
purposes,  so  that  the  title  of  the  heir  to  it  was  incontrovertible. 

So  in  Robinson  v.  Taylor,(g)  the  testator,  after  giving  several 
legacies,  devised  the  residue  of  his  real  and  personal  estates  to  his 
executors  (hereinafter  named,  in  trust,  to  sell  the  real  estate  and 
place  the  produce  at  interest,  and  to  pay  thereout,  and  out  of  the  re- 
maining part  of  his  personal  property  a  particular  annuity.  He  then 
gave  other  annuities  and  legacies,  directing  the  remainder  of  the 
money  which  should  be  then  at  interest  to  continue  so,  and  he  merely 
disposed  of  it  during  the  life  of  his  cousin,  Mary  Stuart,  for  her 
benefit,  and  made  no  other  bequest  of  the  real  proceeds.  Upon  a 
question  between  the  heir  and  next  of  kin,  to  wjiom  the  surplus  of 
the  real  estate  belonged,  Lord  Thurlow  determined  in  favour  of  the 
heir,  upon  the  principle  that  the  conversion  of  the  land  being  merely 
for  particular  purposes,  the  residue  resulted  to  the  heir,  as  real 
estate,  of  which  no  disposition  had  been  made. 

To  the  preceding  cases  that  of  Dixon  v.  Dawson(h}  may  be  added. 
There  the  testatrix  devised  her  real  estates  to  trustees,  upon,  trust  to 
be  sold,  and  with  the  produce  to  pay  and  discharge  all  her  just  debts, 
funeral,  and  testamentary  expenses  and  legacies,  except  her  charita- 
ble legacies,  which  she  directed  to  be  paid  out  of  her  personal  estate 
legally  applicable  for  that  purpose  ;  and  the  testatrix  further  direct- 
ed separate  accounts  to  be  kept  of  the  proceeds  of  her  real  and  of 
her  personal  estate  legally  applicable  for  charitable  purposes ;  declar- 
ing, that  if  the  proceeds  of  her  real  esiate  should  be  insufficient  to 
pay  the  legacies  directed  to  be  paid  therewith,  the  trustees  should 
apply  her  personal  estate  in  payment  of  such  legacies.  The  testa- 

(cQ  Ccltins  v.  Wakeman,  2  Ves.  jun.  683.  18  Ves.  166.  (e]  1  Ves.  &  Bea.  173. 
(/)  2  Ves.  jun.  271.  and  see  Euggins  v.  Yates,  9  Mod.  122,  stated  supra,  p.  346. 
(#)  2  Bro.C.  C.  588.  1  Ves.  jun.  44.  5.  C.  (A)  2  Sim.  &  Stu.  327. 


SECT.  IV.]  into  Personal  Estate.  361 

trix  then  added,  that  if  any  part  of  her  personal  estate  remained,  after 
satisfying  debts  and  funeral  expenses,  and  satisfying  the  charitable 
and  other  legacies,  the  trustees  should  pay  and  transfer  such  residue 
of  her  said  estate  and  effects  unto  her  relation  Dr.  William  Craven. 
The  testatrix  left  Philip  Dixon  her  heir  at  law.  The  trustees  sold 
all  the  real  estates  in  P.  Dixon's  lifetime,  but  the  testatrix's  personal 
estate  was  more  than  sufficient  to  pay  her  funeral  expenses,  debts, 
and  charitable  legacies.  Philip  Dixon  died,  having  appointed  his 
three  children  his  executors :  William  Dixon,  the  eldest  son  and 
heir  at  law,  afterwards  die'd,  leaving  Sarah  the  wife  of  John  Slavin, 
his  heir  at  law  and  personal  "representative.  One  of  the  questions 
was,  who  was  entitled  to  the  produce  of  the  real  estate  ?  One  point 
raised  was,  that  when  the  testatrix  made  the  produce  of  her  real  es- 
tate first  applicable  to  the  payment  of  her  funeral  expenses,  debts, 
and  legacies,  except  charitable  legacies,  her  only  purpose  was  to 
secure  the  payment  of  her  .charitable  legacies  by  means  of  relieving 
the  personal  estate ;  and  that  when  the  charitable  legacies  were  all 
paid,  it  was  not  her  intention  that  the  surplus  of  her  personal  should 
be  relieved  from  the  payment  of  her  funeral  expenses,  debts,  and 
legacies,  at  the  expense  of  her  real  estate  :  but  Sir  John  Leach  V. 
C.,  after  observing  that  that  might  probably  have  been  her  purpose, 
said  that  the  Court  could  not  controul  her  intention  clearly  express- 
ed by  any  conjecture,  and  he  decided  accordingly ;  and  further,  that 
the  personal  representative  of  Philip  Dixon,  the  heir  at  law,  was  en- 
titled to  the  surplus  produce  of  the  real  estate,  as  mohey.  Another 
point  decided  was,  that  the  produce  of  the  real  estate,  included  that 
of  leaseholds,  and  was  primarily  applicable  in  payment  of  the  funeral 
expenses,  debts,  and  legacies,  not  charitable,  the  words  of  the  devise 
comprehending  the  leaseholds :  the  words  were,  "'All  my  messuages, 
dwelling  houses,  buildings,  lands,  tenements,  hereditiments,  and  real 
estate,  whatsoever  and  wheresoever,  and  of  what  nature  or  kind 
soever,  not  hereby  otherwise  disposed  of."  His  Honour  observed, 
that  it  might  be  stated  on  the  authorities,  that  those  general  words 
unaided  by  other  parts  of  the  will,  would  not  include  chattel  leases, 
but  in  that  case  he  thought  the  .intention  was  to  include  them. 

SECT.  IV.  Right  of  the  Heir  or  of  the  Devisees  of  Proceeds 
from  a  sale  of  land  to  lapsed  Interests. 

Having  discussed,  in  the  preceding  sections,  the  rights  of  the  tes- 
tator's heir,  devisee,  residuary  legatees,  and  next  of  kin;  to  the  pro- 
duce of  real  estates  directed  to  be  sold,  the  subject  which  next  pre- 
sents itself  to  notice,  is,  the  title  of  those  persons  to  so  much'  of  the 
proceeds  as  lapses  by  the  deaths  of  parties,  or  is  undisposed  of,  from 
the  illegality  of  the  objects  or  purposes,  or  from  the  neglect  of  the 
devisor. 

The  right  of  the  heir  or  devisee  of  the  estate  to  lapsed  interests 
was  treated  of  in  the  first  section. (t)  We  shall,  therefore,  first,  con- 
sider under  the  present  title — 

The  right  of  the  heir  or  the  devisees  of  the  proceeds  from  the  sale 
of  land  after  answering  particular  purposes,  to  such  parts  of  those 
proceeds  as  lapse,  or  cannot  take  effect,  whether  the  surplus  produce 

(i)  p.  351. 


362  Conversion  of  Heal  [Cn.  XL 

only  be  given  to  the  devisees,  or  whether  it  be  bequeathed  to  them 
together  and  blended  with  the  personal  estate.' 

In  consequence  of  the  heir's  titki  to  every  interest  in  freehold  lands 
not  effectually  disposed  of,  it  seems  ^o  be  settled,  that  although  mo- 
ney, to  arise  from  the  sale  of  them,  be  devised  to  individuals  distinct- 
ly from  or  together  with  the  personal  estate,  after  satisfaction  of  par- 
ticular trusts  previously  declared;  yet,  if  any  of  those  trusts  lapse 
by  the  death  of  cestui'que  trusts,  or  be  void,  as  when  given  to  cha- 
rities, or  are  for  any  reasons  disappointed,  the  heir  will  be  entitled 
to  those  interests,  as  so  much  real  estate  undisposed  of;  and  for  the 
following  reasons  :  the  conversion  of  the  real  estate  into  personal, 
was  merely  intended  by  the  testator  for  the  benefit  of  the  several 
persons  named  in  his  will ;  and  as  nothing  is  given  to  the  devisees 
or  legatees  of  the  real  proceeds,.except  what  remains  after  the  prior 
purposes  are  answered,  all  those1  purposes  are  excepted  out  of  the 
bequest ;  hence  such  of  the  trusts  as  lapse  or  cannot  take  effect,  be- 
ing interests  in  lands  of  which  no  disposition  is  made,  necessarily  re- 
sult to  the  heir.  The  present  differs  from  the  case  before  consider- 
ed,^) of  a  beneficial  devisee  of  lands,  subject  to  particular  charges., 
who  is  entitled  to  lapsed  or  disappointed  interests,  for  there  the  de- 
visee is  substituted  in  the  place  of  the  heirj  the  latter  being  wholly 
disinherited ;  but  in  the  instance  now  under  consideration,  the  gift 
to  the  devisees  or  legatees  is  only  of  so  much  of  the  produce  from 
the  sale  of  the  hinds,  as  remains  after  satisfaction  of  the  particular 
trusts  or  purposes. 

In  support  of  the  above  remarks  we  shall  begin — 

1.  With,  producing  an  instance  where  the  persons  beneficially  in- 
terested in  the  surplus  money  arising .  from  the  sale  of  real  estate, 
were  adjudged  n,ot  to  be  entitled  to  so  much  pf  it  as  consisted  of  a 
sum  reserved  for  a' future  disposition  by  the  settler,  but  which  failed 
by  his  neglect  to  dispose  of  it. 

The  case  alluded  to  is  Emblyn  v.  Freeman,(l)  in  which  Joshua 
Jlylsworth  conveyed  lands  to  trustees,  upon  trust  to  sell  after  his 
death,  and  to  pay  out  of  the  proceeds  a  mortgage  and  other  special- 
ty debts,  also  several  sums  of  money  to  his  relations  and  to  charities ; 
and  directed  the  remainder  of  the  money  to  be  divided  among  the 
plaintiffs,  after  payment  by  his  trustees  of  200Z.  to  such  person  6r 
persons  as  he  should  appoint  by  a  note  under  his  hand.  No  appoint- 
ment was  made  of  that  sum,  and  it. was  decreed,  first  by  the  Master 
of  the  Rolls,  and  afterwards  by  the  Chancellor,  that  the  200/.  result- 
ed and  belonged  to  the  heir  at  law. 

So  in  the  City  of  London  v.  Garway,(m)  Thomas  Garway  devi- 
sed lands  to  three  persons  in  trust  to  sell  and  pay  the  proceeds  to 
such  persons  as  he,  by' a  subscribed  paper,  should  appoint;  but  if  he 
left  none,-  then  in  trust  for  his  four  nephews.  The  testator  appoint- 
ed sums  of  money  to  several  persons,  which  were  far  inferior  to  the 
value  of  the  lands  ;  so  that  there  was  a  considerable  surplus  of  the 
money  which  arose  from  the  sale,  and  which  the  Court'  decreed  to 
the  heir  as  so  much  real  estate,  not  passing  by  the  residuary  clause, 
and  therefore  undisposed  of. 

In  Hutcheson  v.  Hammond,(n)  Mrs.  Hutcheson,  under  a. power  in 

(*)  Sufira,  p.  351.  (I)  Pre.  Ch.  541. 

(m)  2  Vern.  571.  '(")  3  Bro.  C.  C.  128.  143-147. 


SECT.  IV.]  into  Personal  Estate.  363 

her  marriage  settlement,  appointed  to  trustees  certain  real  estates, 
in  trust  to  sell  after  her  decease,  and  place  the  produce  in  the  funds, 
with  a  direction  to  pay  the  dividends  to  her  husband  for  life ;  and 
to  dispose  of  the. principal  after  his  death  in  discharging  two  lega- 
cies of  1500Z.,  another  legacy  of  500Z.  and  10QOZ.  to  Grace  Parker 
(who  died  before  the  testatrix,)  and  to  pay  the  residue  of  the  prin- 
cipal equally  among  the  younger  sons  of  William  Hammond,  with 
benefit  of  survivorship  ;  but  if  they  all  died  before  the  same  became 
payable,  then  to  pay  it  to  Peter  Hammond,  his  executors,  &c.  One 
of  the  questions  was  between  the  residuary  legatees  of  the  money 
arising  from  the  sale  of  the  estate,  and  the  heir.  The  former  claimed 
the  1000/.  as  personal  estate,  in  the  character  of  particular  residuary 
legatees  of  the  fund,  under  the  supposed  apparent  intention  of  the 
testatrix  absolutely  to  convert  and  dispose  of  it  as  personalty ;  while 
the  latter  claimed  the  lapsed  interest  as  so  much  real  estate  undis- 
posed of.  Buller,  J.  determined  in  favour  of  the  heir;  a  decision 
afterwards  confirmed  by  Lord  Thurlow.(o) 

His  Lordship  considered  the  direction  for  sale  of  the  land  and  the 
investment  of  its  produce  in  the  funds  to  be  merely  for  the  purpose 
of  arrangement,  and  not  with  an  intent  to  alter  the  rights  of  the  par- 
ties, by  an  absolute  conversion  of  the  real  into  personal  estate.  The 
property,  therefore,  continuing  land  subject  to  the  specific  trusts  de- 
clared of  its  produce,  the  residuary  devisees  of  that  produce  could 
(as  before  observed)  claim  only  what  remained,  after  deducting  so 
much  as  was  necessary  fully  to  discharge  all  those  trusts.  But  one 
of  them  happened  to  lapse,  and  in  consequence,  part  of  the  real  pro- 
ceeds being  undisposed  of,  the  heir  was  the- only  person  who  could 
make  an  effectual  claim.  His  Lordship  observed,  that  if  a  testator 
blend  his  real  with  his  personal  fund  (which  was  not  that  case,)  and 
make  a  residuary  legatee,  the  appointment  will  carry  all  that  is  not 
disposed  of.  An  observation  perfectly  correct,  when  understood  in 
a  qualified  sense,  as  will  afterwards  appear;  for  the  blending  and 
disposition  of  the  two  estates  is  a  material  step  towards  effecting  a 
total  conversion  of  the  real  estate  into  personal ;  but  the  circum- 
stance of  itself  is  not  sufficient  for  the  purpose,  as  will  be  next  shown. 

Such  being  the  rule  of  equity  in  favour  of  the  heir,  as  before  de- 
tailed in  regard  to  lapsed  interests,  when. the  surplus  from  the  sale 
of  land  is  specifically  and  distinctly  devised  from  him,  the  next  sub- 
ject for  enquiry  is — 

2.  The  rights  of  residuary  legatees  of  money  arising  from  the 
sale  of  real  estate  after  satisfaction  of  particular  purposes,  and  of 
executors  or  next  of  kin  of  testators  to  partial  lapsed  interests, 
when  the  proceeds  of  the  lands  are  blended  with  the  personal 
estate. 

It  is  a  clear  rule  in  equity,  where  real  estate  is  directed  to  be 
converted  into  personal,  for  an  express  purpose  which  fails,  to  con- 
sider, although  the  land  has  been  sold,  the  disappointed  interest  as 
realty,^)  and  resulting  to  the  heir,  as  .was  noticed  in  considering 
the  rights  of  mere  residuary  devisees  of  the  produce  of  real  estate 
to  lapsed  interests.  The  rule  equally  applies  to  cases  where  the 
real  proceeds  are  blended  and  bequeathed  with  the  personalty  after 

(o)  See  also  Jones  v.  Mitchell,  1  Sim.  andStu.  290.         (A)  1  Ves.  &  Bea.  174. 


364  Conversion  of  Real  [Cn.  XL 

answering  particular  objects,  and  the  context  of  the  will  affords  no 
manifestation  of  the  testator's  intention  absolutely  to  convert  and 
dispose  of  liis  real  as  personal  estate;  for  then  the  conversion  of  the 
real  and  personal  property  being  presumed  to  be  made  for  the  spe- 
cial purposes  described,  and  to  continue  land  in  every,  other  re- 
spect, if  one  of  them  lapse  or  fail,  it  is  manifest  that  the  residuary 
legatees. cannot  cla.im  it;  not  as  personal  estate,  because  it  does  not 
fall  within  that  description ;  nor  as  land,  since  they  were  only  in- 
tended to  take  so  much  of  the  proceeds  as  remained  after  the  pre- 
viously declared  purposes  of  their  application  were  .satisfied.  'The 
executor  is.  excluded,  since,  if  it  were  personal  estate,  he  is  pre- 
cluded from  taking  lapsed  interests  \(q]  and  with  respect  to  the  next 
of  kin,  their  title  is  defective,  as  the  disappointed  bequest  is  no 
part  of  the  personalty,  but  of  the  real  property. (r)  The  heir,  there- 
fore, is  the  only  person  entitled  to  it.  The  following  cases  are  pro- 
duced in  confirmation  of  the  above  remarks. 

In  Cruse  v.  Barley,(s]  William  Banson  being  indebted  by  mort- 
gages, bonds,  and  simple  contract,  .devised  his  freehold  and  copy- 
hold lands  to  Barley;  in  trust  to  sell,  and  to  discharge  in  the  first 
place  all  his  incumbrances  and  debts.  He  then  bequeathed  his 
personal  estate  to  trie  same  trustees,  to  sell,  and  after  payment  of 
debts  to  apply  the  proceeds,  and  also  the  money  to  arise  from  sale 
of  the  real  estates,  among  his  (the  testator's  five  children ;  viz.  to 
his  eldest  son  Christopher  2001.  at  the  age  of  twenty-one,  and  all 
the  residue  thereof  among  his  four  younger  children  at  the  same 
age,  with  benefit  of  survivorship.  Christopher  died  before  twenty- 
one,  and  what  was  to  become  of  the  2001.  was  the  question  *?  Sir 
Joseph  Jekyll  was  of  opinion,  that  the  residuary  legatees  were  not 
entitled  to  that  sum,  as  nothing  was  given  to  them  but  the  re- 
mainder after  the  deduction  of  the  2001.;  and  he  finally  determined, 
after  looking  into  precedents,  that  the  money  belonged  to  the  tes- 
tator's heir,  as  so  much  real  estate  undisposed  of. 

Similar  to  the  last  case  is  Gravenor  v.  Hallum,(t)  in  which  Robert 
Goldsbury  devised  to  his  executors  his  freehold  dwelling  house 
(subject  to  bequests  to  charitable  uses,  void  by  the  Statute  of  Mort- 
mainj,  and  also  all  other  his  real  estates,  in  trust  to  sell,  directing 
the  rents,  till  sale,  and  the  residue  of  his  personal  estate,  to  be  ap- 
plied, in  the  first  place  in  payment  of  his  debts,  funeral  expenses, 
and  the  costs  of  his  executors  and  trustees ;  and  in  the-  next  place, 
in  discharge  of  his  legacies,  which  were  numerous.  He  then  gave 
the  residue,  of  the  money  arising  from  sale  of  his  real  estates,  and 
their  rents,  till  sold,  and  of  his  personal  estate,  after  such  deduc- 
tions as  aforesaid,  to  be  divided  and  paid  as  mentioned  in  his  will. 
The  question  was,  whether  the  heir  or  the  residuary  legatees  were 
entitled  to  so  much  of  the  real  proceeds  as  were  given  to  charities, 
and  consequently  undisposed  of.  And  Lord  Camden  decided  for 
the  heir,  upon  the  principle  before  stated;  observing,  that  he  rest- 
ed his  opinion  altogether  upon  the  intention  of  the  testator,  and  the 
strong  reluctance  in  the  Court  to  disinherit  an  heir  at  law. 

The  next  is  a  very  strong  case  in  favour  of  the  heir  against  the 

(?)  1  Atk.  469.  r!8  Ves.  254,  255.  (r)  18  Ves.  165.     1  Ves.  &  Bea.  173. 

(«)  3  P.  Will.  20.     1  Bro.  C.  C.  512.          (0  Ambl.  643. 


SECT.  IV.]  into  Personal  Estate.  365 

claims  of  the  residuary  legatees  of  the  personalty,  and  is  probably 
such  a  decision  as  would  €1  present  be  disapproved  of;(w)  for,  al- 
though the  testator  declared  that  the  proceeds  from  the  sale  of  his 
real  estate  should  be  considered  as  part  of  his  personal  estate,  sub- 
jecting both  of  them  to  the  payment  of  legacies,  and  disposing  of  his 
residuary  personal  estate ;  yet  it  was  determined,  that  a  sum  of  1000Z. 
reserved  by  the  testator  for  his  future  appointment,  of  which  he 
made  none,  did  not  fall  into  the  residue,  as  part  of  the  personal  es- 
tate, but  resulted  to  the  heir. 

The  case  alluded  to  is  Collins  v.  Wakeman,(x)  in  which  the  tes- 
tator devised  real  estates  to  one  Collins  in  trust  to  sell,  declaring 
the  produce  to  be  considered  "  as  part  of  his  personal  estate ;  and 
thereout  and  out  of  his  personal  property  he  gave  several  legacies, 
some  to  his  next  of  kin,  and  one  to  his  heir,  John  Reeve.  He  then 
devised  a  copyhold  estate  to  the  same  trustee  to  sell,  ordering  the 
proceeds'"  to  be  considered,  from  the  period  of  sale,  as  other  part 
of  his  personal  estate,"  to  be  applied  in  discharge  of  several  lega- 
cies. Besides  those  legacies  he  gave  others  "  out  of  his  said  trust 
monies  and  personal  estate,"  and  bequeathed  to  Collins  1000Z.  to  be 
disposed  of  according  to  any  written  instructions  that  he  (the  testa- 
tor) might  leave.  He  then  gave  his  residuary  personal  estate  to 
Mary  Wakeman  absolutely,  and  died,  without  disposing  of  the  1000Z. 
which  was  claimed  as  personalty  by  the  residuary  legatees  and  next 
of  kin.  But  Lord  Rosslyn  was  of  opinion  that  the  money  belonged 
to  the  heir  as  so  much  land  undisposed  of.(y) 

A  testator  however  having  the  power,  as  before  observed, (z}  to 
change  the  nature  of  his  real  estate  into  personal  to  all  intents  and 
purposes,  and  to  dispose  of  it  as  personalty,  so  as  to  prevent  a  re- 
sulting trust  to  the  heir,  it  follows,  that  if  he  show  an  intention  to 
do  so,  and  make  the  disposition,  his  residuary  legatee  of  the  personal 
fund  will  be  entitled  to  the  benefit  of  all  interests  affecting  the  pro- 
ceeds from  the  real  estate  which  lapse  or  are  disappointed. 

An  instance  of  such  a  conversion  of  the  real  property  occurred  in 
the  case  of  Kennell  v.  dbbott,(a)  where  Mrs.  Hickman,  erroneously 
supposing  herself  to  have  been  lawfully  married  to  a  second  husband 
Edward  Lovell,  but  who  had  a  wife  by  a  prior  marriage  then  living, 
bequeathed  300J.  stock  to  her  niece  Betty  Kennell,  for  life,  and  to 
her  nephew  Martin  Togood,  leasehold  property.  She  then  gave  a 
copyhold  estate  to  her  brother  Thomas  Abbott,  in  trust  to  sell,  and 
pay  out  of  the  purchase  money  legacies  to  particular  relatives,  also 
one  legacy  of  1501.  "  to  her  husband  Edward  Lovell"  which  failed 
in  consequence  of  his  not  being  her  lawful  husband.  The  testatrix, 
after  giving  a  leasehold  estate  to  her  great  niece  Catharine  Kennell, 
bequeathed  all  her  household  goods,  plate,  furniture,  and  stock  in 
husbandry,  to  Thomas  Abbott,  in  trust  to  sell,  and  out  of  the  pro- 
duce to  insert  the  life  of  her  great  niece  in  the  leasehold  estate. 
She  then  bequeathed  her  wearing  apparel  and  linen  to  Betty  Ken- 

(w)  See  Att.  Gen.  v.  Holford,  1  Price,  426. 

(x}  2  Ves.  jun.  683,  acknowledged  by  Sir  W.  Grant  in  Hoofier  v.  Goodwin,  18 
Ves.  166.  1  Jacob,  375. 

(y)  See  also  Hill  v.  Cock,  1  Ves.  &  Bea.  173.  stated  su/ira,  p.  360. 
(z)  Ante,  p.  359.  (a)  4  Ves.  802-810. 

VOL.  i.  3  A 


366  Conversion  of  Real  [On.  XL 

nell,  and  gave  the  residue  of  the  money  arising  from  the  sale  of  the 
copyhold  estate,  household  goods,  and  •rniture,  and  the  residue  of 
her  personal  estate  whatsoever  and  wheresoever,  and  which  she  had 
power  to  dispose  of,  to  her  niece  Betty  Kennell,  subject  to  debts  and 
funeral  expenses,  and  appointed  her  sole  executrix.  The  disap- 
pointed legacy  of  1501.  was  claimed  by  Betty  Kennell,  the  residuary 
legatee  against  the  heir,  upon  the  principle  of  its  appearing  from 
the  will,  that  the  testatrix  meant  a  thorough  conversion  of  the  copy- 
hold into  personal  estate.  And  of  that  opinion  was  Lord  Alvanley, 
M.  R.,  who  decreed  in  her  favour,  upon  the  authorities  of  Mallabar 
v.  Mallabar,(b)  and  Durour  v.  Motteux. 

His  Honour  remarked,  in  the  last  case,  that  the  testatrix  had  be- 
queathed several  particular  parts  of  her  estate,  stock,  leasehold 
estates,  household  goods,  furniture,  and  other  articles;  also  the  copy- 
hold estate  which  she  ordered  to  be  sold  in  all  events,  and  the  lega- 
cies to  be  paid  out  of  the  purchase  money.  Then  came  the  resi- 
duary disposition.  Under  these  circumstances,  he  thought  the  real 
estate  was  made  personal  to  all  intents  and  purposes  ;  and  that  such 
was  the  testatrix's  intention ;  since,  she  taking  a  retrospective  view 
of  what  she  had  done,  and  meaning  to  give  every  thing  not  disposed 
of,  inserted  the  residuary  clause ;  so  that,  the  real  proceeds,  forming 
part  of  the  personal  estate  entitled  the  residuary  legatee  not  only  to 
every  thing  not  expressly  disposed  of,  but  also  to  all  interests  lapsed, 
and  to  each  part  of  the  personal  fund  by  any  means  not  effectually 
given.  To  which  may  be  added  the  inference  deducible  from  the 
circumstance  of  Betty  KenneU  being  named  executrix  as  well  as  re- 
siduary legatee ;  the  effect  of  which  is  detailed  in  Lord  TalboVs 
judgment  in  the  case  of  Mallabar  v.  Mallabar,  stated  in  a  preced- 
ing page.(c) 

But  the  case  of  Durour  \.  Motteux,(d")  does  not  perhaps  furnish 
so  strong  an  indication  of  intention  as  the  last.  There  Mr.  Motteux 
devised  all  his  real  estates  to  trustees  to  sell,  and  to  dispose  of  the 
whole,  with  his  personal  estate  to  pay  debts  and  legacies  and  to  per- 
form his  will.  He  gave  legacies,  and  among  them  1200Z.  which 
could  not  take  effect,  as  being  given  to  a  charity  and  directed  to  be 
laid  out  in  the  purchase  of  land.  The  remainder  of  the  lands  were 
also  appropriated  to  charitable  purposes ;  and  the  testator  directed 
his  trustees  to  place  out  all  the  residue  of  his  estate  and  interest 
thereon  upon  securities,  and  divide  among  several  persons.  To 
whom  the  1200J.  belonged  was  a  question  between  the  heir  and 
residuary  legatees.  And  Lord  Hardwicke  determined  in  favour  of 
the  latter,  being  of  opinion  that  the  money  to  arise  from  the  sale  of 
the  real  estate  was,  and  was  intended  by  the  testator  to  be,  converted 
into  personal ;  his  Lordship  observing  that  the  intent  to  include  the 
whole  in  the  residue  plainly  appeared  from  the  testator's  description 
of  all  his  personal  estate,  so  that  the  whole  of  the  real  was  to  be  con- 
sidered as  personal  property. 

The  last  is  a  case  very  imperfectly  reported,  and  it  may  be  rea- 
sonably presumed  that.so  acute  and  able  a  judge  as  Lord  Hardwicke, 

(b)  Forrest,  78.  (c)  Sufira,  p.  356. 

(d)  1  Ves.  sen.  321,  stated  from  the  Register  Book,  1  Sim.  &  Stu.  292,  Jones 
v.  Mitchell. 


SECT.  IV.]  into  Personal  Estate.  367. 

would  not  have  disinherited  the  heir  upon  the  sole  ground  of  the 
testator  in  disposing  of  residuary  property  having  made  use  of  the 
word  all,  as  the  report  of  his  judgment  seems  to  imply.  Doubtless 
there  were  Bother  circumstances  that  influenced  his  opinion,  which 
are  not  expressed  in  the  printed  narrative.  Sir  William  Grant,  in 
commenting  upon  this  case,  spoke  to  the  following  effect:  "From 
the  little  Lord  Hardwicke  is  reported  to  have  said,  it  is  difficult  to 
ascertain  from  what  expressions  he  inferred,  that  by  the  description 
of  all  his  personal  estate,  the  testator  meant  to  include  everft  thing 
in  the  residue.  If  any  stress  is  to  be  laid  upon  the  word  all,  it  does 
not  occur  here ;  but  that  the  decision  is  generally  accounted  for  by 
the  particular  manner  in  which  the  sale  was  directed,  and  the  cir- 
cumstance of  the  testator  having  blended  the  real  and  personal 
estates  in  one  gift  to  trustees,  to  sell  the  whole  with '  his  personal 
estate,  &c."(e) 

Having  attempted  to  ascertain  the  persons  to  whom  belong  par- 
tial interests,  affecting  lands,  that  lapse  or  are  disappointed,  the 
next  subject  of  inquiry  is, — 

3.  The  rights  of  surviving  devisees  or  legatees  of  the  produce 
arising  from  the  sale  of  real  estate,  whether  of  the  specific  proceeds 
only,  or  as  residuary  legatee  of  the  personalty,  to  shares  that  lapse 
by  the  death  of  their  companions. 

FIRST,  when  the  devisees  or  legatees  are  made  joint-tenants. 

In  the  last  chapter  (/)  it  was  shown,  that  if  property  be  given  to 
several  persons  in  joint  tenancy,  and  one  of  them  die  before  the  tes- 
tator, his  intended  share  will  belong  to  the  survivors,  upon  the  prin- 
ciple, that  each  legatee  or  devisee  is  a  taker  of  the  entire  fund,  and 
not  of  distinct  parts  of  it.  Hence  it  follows,  that  if  the  proceeds 
from  the  sale  of  land  be  devised  to  A.  and  B.  either  specifically,  or 
as  part  of  the  residuary  personal  estate,  and  A.  die  before  the  testa- 
tor, his  share  will  not  lapse  to  the  heir  or  next  of  kin  of  the  devisor, 
but  belong  to  B.(g)  This,  however,  is  not  so,  when  the  devisees  or 
legatees  take  their  interests  in  severally  without  benefit  of  survivor- 
ship, which  happens — 

SECONDLY. — When  the  produce  from  land  directed  to  be  sold  is 
devised  to  two  or  more  persons  as  mere  tenants  in  common,  either 
specifically  or  as  part  of  the  residuary  personal  estate.  The  princi- 
pal of  the  distinction,  with  the  exceptions  to  it,  are  stated  in  the 
fourth  section  of  the  last  chapter. 

An  authority  upon  this  subject  is  Digby  v.  Legard,(h)  in  which 
E.  B.  devised  her  real  and  personal  estates  to  trustees  in  trust  to 
sell,  to  discharge  debts  and  legacies,  and  to  pay  the  residue  to  five 
persons  in  equal  shares.  One  of  them  died  before  the  testatrix,  and 
Lord  Bathurst  held  at  the  hearing  of  the  cause,  and  afterwards  upon 
a  rehearing,  that  the  share  of  the  deceased  residuary  legatee  in  the 
real  estate  resulted  to  the  testatrix's  heir. 

The  last  case  was  approved  of  in  the  leading  authority  of  Jlckroyd 
v.  Smithson.(i)  The  testator,  after  bequeathing  several  general  le- 
gacies, gave  all  his  real  and  all  his  personal  estate  to  two  persons,  in 

(0  1  Ves.  &  Bea.  417.  and  see  1  Pro.  C.  C.  500.  (/)  Sect.  4. 

f)  See  cases  collected  in  the  section  last  referred  to. 
z)  3  P.  Will.  22.  in  notis,  Ed.  by  Cox,  18  Ves,  166.        (f)  1  Bro.  C.  C.  503. 


368  Conversion  of  Real  [Cn.  IX. 

trust  to  sell  and  convert  such  two  estates  into  money,  and  to  pay  out 
of  the  proceeds  of  the  sale  all  his  debts,  legacies,  and  funeral  ex- 
penses, and  the  charges  of  proving  his  will ;  and  after  such  payments, 
and  retaining  50/.  each  for  their  trouble,  in  trust,  out  of  such  monies 
as  aforesaid,  to  pay  all  legacies  and  annuities  given  by  his  will ;  and 
if  there  remained  a  surplus  in  the  hands  of  his  trustees,  as  he  con- 
ceived would  be  the  case,  and  to  a  considerable  amount,  he  gave  it 
to  his  several  legatees  (naming  them)  "  in  proportion  to  their  several 
and  respective  legacies,"  with  a  direction  for  payment  within  six 
months  after  the  residue  could  be  ascertained.  By  this  bequest  the 
residuary  legatees  were  entitled  as  tenants  in  common.  Two  of 
them  died  before  the  testator,  whose  shares  were  claimed  by  their 
next  of  kin,  the  testator's  heir,  and  also  the  surviving  residuary  lega- 
tees; and  Sir*  Thomas  Sewell,  M.  R.,  decided  in  favour  of  the  last. 
But  the  next  of  kin,  being  dissatisfied,  appealed  from  the  decree, 
and  the  cause  was  reheard  before  Lord  Thurlow,  who  determined, 
in  consequence  of  the  celebrated  argument  of  Mr.  Scott  (now  Earl 
of  Eldon,)  that  the  two  shares  lapsed,  and  resulted  to  the  heir  and 
next  of  kin  ;  i.  e.  such  parts  as  were  real  produce  to  the  heir,  and 
such  as  were  personal  to  the  next  of  kin. 

The  foundation  upon  which  his  Lordship's  opinion  rested  in  re- 
gard to  the  real  proceeds,  seems  to  have  been, — first,  that  the  claims 
of  the  surviving  residuary  legatees  could  not  be  supported,  since 
they,  being  tenants  in  common,  were  only  entitled  to  the  several 
shares  bequeathed  to  them.  Secondly,  that  the  title  next  of  kin  was 
equally  defective  ;  as  the  conversion  of  the  real  into  personal  estate 
being  merely  to  answer  the  special  purposes,  and  to  be  distributed 
among  particular  persons,  so  much  of  the  real  proceeds  as  were  not 
required  for  any  of  those  objects  retained  the  quality  of  land  j 
whence  it  followed,  that  as  the  right  of  the  next  of  kin  was  confined 
to  personal  property  undisposed  of,  the  lapse  of  the  two  residuary 
shares,  so  far  as  they  consisted  of  real  estate,  could  not  result  or  be- 
long to  them.  And  thirdly,  that  as  there  was  no  person  who  could 
claim  such  parts  of  those  shares  as  were  the  produce  of  the  land, 
they  necessarily  resulted  to  the  heir. 

The  last  case  was  followed  by  Williams  v.  Coade,(k)  in  which  Sir 
William  Grant  made  a  similar  decree. 

It  is  to  be  noticed  that  the  two  last-stated  authorities  were  cases 
of  lapse  by  death  before  the  testator. 

SECT.  V.  Right  of  personal  representatives  of  devisee  or  lega- 
tee of  real  proceeds  in  preference  to  testator's  heir. 

Suppose  the  residuary  legatee  in  the  first  case  had  survived  the 
testatrix,  and  died  immediately  afterwards,  or  before  a  sale  of  the 
real  estate  ;  or,  that  the  two  residuary  legatees  in  the  second  had 
died  within  the  six  months  after  the  surplus  was  ascertained  ;  it  is 
presumed,  that  no  lapse  would  have  taken  place,  and  that  the  per- 
sonal representatives  of  the  legatees  would  have  been  entitled  to  the 
shares  as  money,  since  the  land  was  converted  into  personalty  to  the 
extent  of  being  applied  and  distributed  in  the  manner,  and  for  the 
objections  and  the  purposes  mentioned  in  the  wills.(Z) 

(*)  10  Ves,  500.  (/)  See  1  Price,  483. 


SECT.  VI.]  into  Personal  Estate.  369 

For  the  same  reason,  when  real  estate  is  converted  and  disposed 
of  as  personal  to  all  intents  and  purposes,  and  is  so  given  that  the 
residuary  legatee  takes  a  vested  interest  before  his  death  ;  although 
he  die  before  the  period  of  payment  arrives  (as  during  the  continu- 
ance of  a  tenancy  for  life,)  his  personal  representative,  and  not  the 
heir  of  the  testator,  will  be  entitled  to  it  as  part  of  the  personal 
estate  bequeathed  to  him. 

Such  an  instance  occurred  in  Fletcher  v.  Ashburner,(m)  deter- 
mined by  Sir  Thomas  SewelL  In  that  case,  John  Fletcher  devised 
his  burgage  houses  and  free  rents  in  Kendall,  and  all  his  personal 
estate,  to  trustees,  to  sell  so  much  as  should  be  sufficient  to  pay  his 
debts,  and  to  permit  his  wife  Jlgnes  to  enjoy  the  residue  for  life,  and 
then  to  sell  the  same,  and  pay  the  proceeds  to  his  children  William 
and  Mary,  equally,  after  deducting  expenses  and  half  a  guinea  to 
each  trustee  for  their  trouble.  But  if  his  wife  married  again,  the 
trustees  were  immediately  to  sell  all  his  estate  and  effects  given  to 
her  for  life,  and  to  pay  the  remainder  of  the  proceeds,  after  making 
the  above  deductions,  to  his  said  wife  and  two  children  in  equal 
proportions,  with  a  cross  limitation  of  the  share  to  the  surviving 
'child,  upon  the  death  of  either  before  his  or  her  proportion  became 
due.  The  wife  continued  a  widow.  William,  the  testator's  heir, 
and  a  devisee,  died  before  the  wife,  after  attaining  twenty-one ;  and 
Mary,  after  attaining  that  age,  died  unmarried  before  her  mother 
and  brother.  The  widow  was  the  sole  next  of  kin  of  William,  who 
survived  his  sister,  and  was  entitled  to  their  shares  of  the  money  pro- 
duced from  a  sale  of  the  real  estate,  if  it  were  to  be  considered  as 
personal ;  but  the  heir  of  the  testator,  who  was  also  heir  of  William., 
insisted  that  he  was  entitled  to  them,  as  so  much  realty  undisposed 
of.  And  Sir  Thomas  Sewell,M.  R.,  determined,  that  this  was  a  case 
of  absolute  conversion  of  the  real  into  personal  estate  ;  that  William 
the  son  had  the  whole  beneficial  title  vested  in  him  as  money,  sub- 
ject to  his  mother's  estate  for  life  or  during  widowhood ;  and  that  as 
she  survived  him,  and  was  his  sole  next  of  kin,  the  interest  that 
vested  in  him  became  vested  in  her,  which  entitled  her  personal  re- 
presentative to  the  whole  fund  as  money. 

We  shall  next  consider — 

SECT.  VI.  When  produce  from  sale  of  land  resulting  to  Testa- 
tor's Heir,  is  to  be  considered  land  or  money. 

The  nature  and  quality  of  the  interest  which  heir  of  the  testator 
takes  in  the  real  property  resulting  to  him,  i.  e.  whether  as  land 
or  money ;  for  if  as  land,  and  he  die  intestate,  it  will  descend  to  his 
heir ;  but  if  as  money,  it  will  pass  by  his  will,  or  go  to  his  next  of 
kin  upon  his  intestacy. 

From  what  has  been  detailed  in  the  preceding  pages  of  this  chap- 
ter, the  following  conclusions  will  probably  be  found  correct ;  and 
are  submitted  to  the  reader's  consideration  under  the  ensuing  ar- 
rangement : 

(m)  1  Bro.  C.  C.  503.  and  see  Brown  v.  Bigg,  7  Ves.  279-287.  5.  P.  also  Van 
v.  Barnett,  19  Ves,  102-111.  Alt.  Gen.  v.  Holford,  1  Price,  483,  stated  infra, 
p.  173. 


370  Conversion  of  Real  [Cn.  IX. 

1.  When  conversion  of  the  real  estate  is  directed  for  particular 
purposes,  and  there  is  no  disposition  of  the  surplus. 

Where  a  testator  devises  his  real  estate  in  trust  to  be  sold  to  pay 
debts  and  legacies,  and  dies  intestate  as  to  the  excess,  his  heir  will 
take  it  as  land ;  for  there  being  neither  intention  to  change  the  na- 
ture of  the  property,  nor  any  disposition  of  it  beyond  those  purposes, 
it  necessarily  retains  its  real  quality. (n) 

So  also,  if  any  of  the  legacies  lapse,  they  will  result  to  the  heir  as 
land  ;  for  the  conversion  of  the  real  estate  being  made  for  specific 
objects  only,  and  not  out  and  out,  the  land  retains  its  primitive  nature 
until  called  upon  to  answer  the  particular  purposes  to  which  it  was 
subjected  by  the  testator ;  if,  then,  any  of  them  fail,  there  is  no  ne- 
cessity for  a  sale  of  so  much  of  the  real  property,  which  continuing 
land,  as  before  observed,  results  in  that  quality  to  the  heir.(o) 

2.  When  the  surplus  of  lands  directed  to  be  sold  for  particular 
purposes  is  disposed  of,  either  alone  or  with  personal  estate. 

If  the  residue  of  the  real  proceeds  be  so  given,  as  to  show  the 
testator  merely  intended  the  residuary  devisee  or  legatee  to  make 
what  remained  after  satisfaction  of  prior  trusts  or  charges,  and  any 
of  them  lapse  or  fail,  they  will  result  to  the  heir  as  land,  for  the 
reasons  before  noticed,  which  entitle  him  to  lapsed  interests, 
where  no  disposition  is  made  of  the  residuary  real  property  Qo). 

And  when  the  surplus  real  proceeds  are  devised  to  one  person, 
who  dies  before  the  testator,  and  there  is  no  intention  to  be  col- 
lected from  the  will  that  the  devisor  meant  a  complete  conversion 
of  his  real  into  personal  estate,  and  to  dispose  of  the  real  pro- 
duce as  personalty,  the  lapsed  residuary  real  proceeds  will  result 
to  the  heir  as  land,  upon  the  same  reasoning  that  a  court  of 
equity  gives  him  the  like  produce  where  no  disposition  is  made 
of  it. 

But  when  the  money  arising  from  the  sale  of  freehold  lands, 
after  answering  particular  purposes,  is  given  to  persons  as  tenants 
in  common,  and  one  of  them  dies  during  the  life  of  the  devisor,  it 
has  been  decided  that  the  heir  and  surviving  devisees  take  their 
shares  as  money,  upon  the  following  presumption;  that  the  motive 
of  the  testator,  in  making  the  disposition,  was  for  the  convenient 
division  of  the  property  among  the  devisees,  a  purpose  still  con- 
tinuing notwithstanding  the  substitution  of  the  heir  in  the  place  of 
the  deceased  devisee.  Hence,  if  the  net  real  proceeds  were  given 
to  A.  and  B.,  as  tenants  in  common,  and  A.  died  before  the  tes- 
tator, the  heir  of  the  testator  and  B.  would  take  the  whole  as 
money  (q). 

The  above  presumption  however  would  fail,  if  both  A.  and  B. 
died  during  the  life  of  the  devisor,  (events  which  would  occasion 
a  total  lapse  of  the  residuary  real  proceeds;)  because  the  conve- 
nience of  division  no  longer  existing,  and  no  sale  being  necessary 
for  the  accommodation  of  Jl.  and  B.,  the  case  becomes  simply  that 
of  a  conversion  of  lands  to  pay  debts,  &c.  without  any  disposition 
being  made  of  the  surplus,  which  we  have  seen  will  result  to  the 
heir  as  land  (r). 

(n)  3  Bro.  C.  C.  143.  16  Ves.  191.  (o)  4  Madd.  492. 

f/i)  Pre.  Chan.  541.     1  Ves.  &  Bea.  174.     3  P.  Will,  20-22.     4  Madd.  492. 
(7)  4  Madd.  493.  (r)  1  Bro.  C.  C.  509.     10  Ves.  500-505. 


SECT.  VI.]  into  Personal  Estate.  371 

The  decision  of  Sir  John  Leach,  V.  C.,  in  Smith  v.  Claxton(s), 
appears  to  have  been  founded  upon  the  distinctions  before  men- 
tioned. There,  Thomas  Smith  bequeathed  his  residuary  personal 
estate,  and  devised  a  part  of  his  freehold  property  in  S.  to  trustees, 
in  trust  to  sell  both  funds,  and  to  pay  his  debts,  funeral  expenses, 
and  legacies  out  of  the  produce,  and  the  residue  to  his  wife.  He 
then  gave  the  remainder  of  his  lands  in  S.  to  trustees,  to  pay  the 
rents  to  his  wife  for  life,  remainder  to  his  son  and  heir  Thomas  for 
life,  and  to  sell  the  same  after  his  death,  and  pay  the  proceeds  to 
Robert  (son  of  Thomas),  and  all  the  other  children  of  Thomas,  in 
equal  shares;  their  interests  to  be  vested  at  the  ages  of  twenty- 
one;  but  if  all  of  them  died  before  taking  vested  interests,  the 
money  to  arise  from  the  sale  was  to  be  in  trust  for  the  testator's 
sons  Joseph  and  Robert.  The  testator  also  gave  to  the  same  trus- 
tees other  freehold  and  some  leasehold  estates,  in  trust,  after  dis- 
charging an  annuity,  to  pay  the  rents  to  his  son  Robert  for  life, 
and  then  to  sell  and  pay  the  produce  equally  among  Robert's  chil- 
dren (if  any),  but  if  none,  to  hold  the  money  in  trust  for  the  testa- 
tor's sons  Thomas  and  Joseph  in  equal  shares.  The  personal  estate 
being  sufficient  to  satisfy  the  debts,  &c.  so  as  to  render  a  sale  of 
any  part  of  the  freehold  lands  unnecessary;  three  questions  arose, 
and  were  decided  in  consequence  of  resulting  trusts  to  the  heir  oc- 
casioned by  the  deaths  of  the  testator's  wife,  his  son  Robert,  and 
his  grandson  Robert  the  son  of  Thomas,  during  the  life  of  the  tes- 
tator. The  first  of  those  questions  was,  whether  that  part  of  the 
freehold  estates  in  S.,  the  ultimate  proceeds  from  the  sale  of  which 
were  devised  to  the  wife,  resulted  to  the  heir  as  land  or  money'? 
And  -the  Court  held  (upon  the  principle  before  stated  in  the  sup- 
posed case  of  a  devise  to  one  person  of  the  surplus  real  produce 
which  lapsed  by  his  death)  that  the  heir  took  as  land  so  much  of 
the  real  proceeds  as  were  intended  for  the  wife.  With  respect  to 
the  second  question,  viz.  in  what  quality  the  remainder  of  the  real 
estate  in  S.  resulted  to  the  heir  first  by  the  death  of  Robert  the 
grandson  and  only  child  of  Thomas,  and  fcthen  by  the  death  of 
Robert  son  of  the  testator  to  whom  and  Joseph  the  produce  from 
a  sale  was  ultimately  devised  in  common,  it  was  decided,  upon  the 
reasoning  before  stated  as  applicable  to  such  a  *case  (t ),  that  the 
heir  took  Robert's  (the  son's)  intended  share  as  money.  The  like 
decision  was  made  on  the  third  question  that  arose  upon  the  devise 
of  real  proceeds  to  Thomas  and  Joseph  in  common  (Thomas  hav- 
ing died  without  children,  after  surviving  the  devisor)  and  which 
was,  in  what  quality  Thomas  as  heir  took  the  moiety  of  those 
proceeds  ;  and  the  Court  declared,  upon  the  principle  it  decided 
the  second  question,  that  the  share  belonged  to  him  as  money  (w). 

In  the  late  case  of  Dixon  v.  Dawson,  Sir  John  Leach,  V.  C.  ob- 
served, "  I  adhere  to  the  principles  which  I  stated  in  the  case  of 
Smith  v.  Claxton,  that  where  the  whole  land  is  properly  sold  by  the 
trustees,  and  there  is  only  a  partial  disposition  of  the  produce  of  the 

Js)  4  Madd.  484.  493,  (0  Ante,  p.  370. 

w)  The  other  cases  upon  this  subject,  are  Hewitt  v.  Wright,  1  Bro.  C.  C.  86. 
•ight  v.  Wright,  16  Ves.  188.    Jones  v,  Mitchell,  ISim.  &  Stu.  2.90.    Dixon  v. 
Dawson,  2  Sim.  &  Slu.  340. 


372  Conversion  of  Real  [Cn.  IX. 

sale,  there  the  surplus  belongs  to  the  heir  as  money,  and  not  as  land ;" 
and  his  Honour  declared  that  the  surplus  in  the  case  before  him, 
therefore,  belonged  to  the  personal  representative  of  Philip  Dixon, 
the  heir. 

3.  It  was  an  observation  of  the  Court  in  the  case  of  Smith  v. 
Claxton,  that  the  heir  and  Joseph  might  have  agreed  to  take  the  land 
in  its  primitive  and  natural  state  :  a  right  of  which  there  is  no  doubt. 
The  effects  of  such  their  election  would  have  been  to  discharge  the 
land  from  the  nature  of  personalty  impressed  upon  it  by  the  opera- 
tion of  the  will;  and  the  share  of  each  would  have  descended  to  his 
heir  or  passed  by  his  will  as  real  estate. (x)  Slight  circumstances 
will  be  sufficient  to  effectuate  the  above  purpose,  and  notwithstand- 
ing the  dictum  of  Lord  Hardwicke  to  the  contrary, (?/)  even  parol 
declarations ;(«)  yet,  trivial  as  they  may  be,  it  is  necessary  that  they 
clearly  indicate  the  intention  of  the  parties  to  accept  and  enjoy  the 
fund  as  real  property. (a)  If,  then,  lands  be  devised  to  trustees  to 
sell  and  divide  the  proceeds  between  A.  and  B.,  and  the  heir  of  the 
testator  become  entitled  to  «#.'*  share  by  lapse,  and  the  heir  and  B. 
do  no  other  act,  expressive  of  their  intention  to  take  their  shares 
as  realty,  but  by  entering  upon  and  occupying  the  property,  the  case 
of  Kirkman  v.  Miles(b)  purports  to  be  an  authority  that  the  land 
will  be  the  personal  estate  of  the  heir  and  B. 

SECT.   VII.  When  the  devisees  of  the  real  produce  take  it  as 
land  or  money. 

What  has  been  said,  in  regard  to  the  testator's  heir  and  surviving 
devisees,  equally  applies  to  instances  where  there  is  no  lapse,  but 
the  devisees  of  the  real  produce  survive  the  devisor ;  and  the  case  of 
Kirkman  v.  Miles  is  one  of  that  description.  There  the  devisees 
of  the  money  to  arise  from  the  sale  of  freehold  property  entered 
and  continued  in  possession  of  the  estate  for  two  years ;  and  Sir 
William  Grant  was  of  opinion,  that  the  period  was  too  short  to  pre- 
sume an  election.(c) 

In  Van  v.  Barnett,(d)  Lord  Eldon  remarked  that  it  was  not  com- 
petent for  an  infant  to  make  election. 

And  it  appears,  from  the  case  of  Oldham  v.  Hughes,(e]  that,  with- 
out the  interposition  of  a  court  of  equity,  coverture  is  a  disability  to 
a  woman's  electing  to  change  the  nature  of  her  property. 

Neither  can  a  lunatic  make  such  election. (/) 

When  a  residuary  legatee  takes  the  proceeds  from  the  sale  of  lands 
as  money,  under  the  operation  of  the  will,  his  election  to  take  the 
estate  as  land  will  not  prejudice  the  right  of  the  crown  to  the  legacy 


( .r)  3  Atk.  447.     1  Bro.  C.  C.  236.     8  Ves.  236.     2  Meriv.  531. 
(y )  Sradish  v.  Gee,  Amb.  229. 

(z)  2  P.  Will.  174.    1  Bro.  C.  C.  236.     8  Ves.  236.     19  Ves.  109.    7  Bro.   Parl. 
Ca.  557. 

(a)  12  Ves.  T65.  2  Meriv.  521-531.     7  Bro.  Parl.  Ca.  558.  8vo.  ed. 
(6)  13  Ves.  338. 

(c)  Upon  this  species  of  presumption  see  observations,  7  Pro.  Parl.  Ca.  559. 
8vo.  ed. 

(d)  19  Ves.  109.    See  also  Ambl.  241.     Earlom  v.  Sounders  Carr  v.  Ellison, 
2  Bro.  C.  C.  55. 

(e)  2  Atk.  453.     See  also  1  Ves.  sen.  Cunningham  v.  Moody,  174. 
(/)  Ashby  v.  Palmer,  1  Meriv.  296. 


SECT.  VII.]  into  Personal  Estate.  373 

duty  imposed  by  the  55  Geo.  3,  ch.  184,  sched.  3,  upon  the  clear  re- 
sidue of  money  to  arise  from  the  sale  of  real  estates. 

That  point  was  settled  in  the  Atterney  General  v.  Holford,(g)  by 
the  Court  of  Exchequer.  George  Bogg  devised  and  bequeathed  to 
trustees  all  his  estate,  freehold,  leasehold,  or  otherwise  denominated, 
consisting  in  part  of  a  share  in  the  New  River  water-works  (which 
was  freehold,)  upon  trust  to  make  an  immediate  sale  ;  and  he  de- 
clared that  the  profits  should  be  deemed  part  of  the  residue  of  his 
estate  thereafter  disposed  of,  or  go  in  aid  (if  necessary)  of  the  rest  of 
his  property  in  discharge  of  legacies;  and  after  bequeathing  certain 
legacies,  he  gave  the  residue  of  his  estate  and  effects,  whatsoever 
and  wheresoever,  to  Josiah  Holford,  his  heirs,  executors,  &c.  The 
personal  estate  was  more  than  sufficient  to  pay  the  debts  and  lega- 
cies. And  the  question  was,  whether,  as  Holford  chose  to  take  the 
New  River  share  as  realty,  his  election  should  defeat  the  legacy  duty? 
And  the  Court  decided  in  the  negative,  upon  the  principle  that  the 
fund  was  in  equity  absolutely  converted  into  personal  estate  by  the 
will ;  and  that,  although  Holford  might  prevent  a  sale  by  elect- 
ing to  take  the  share  as  it  was,  yet,  it  being  money,  which  would  go 
to  his  personal  representatives  if  no  such  election  were  made,  the  ex- 
ercise of  that  power  could  not  be  permitted  to  disappoint  the  duty 
which  would  attach  upon  the  proceeds  received  by  Holford  from  a 
sale  of  the  property,  which,  so  far  as  regarded  the  duty,  ought  to  be 
considered  as  made. 


CHAPTER  X. 

Of  vested  Legacies  payable  out  of  the  Personal  Estate. 

IT  will  be  attempted  in  this  chapter  to  ascertain  the  circumstances, 
under  which  a  legacy  will  be  vested  or  contingent,  i.  e.  when  the  in- 
terest of  the  legatee  will  be  so  fixed"  as  to  be  transmissible  to  his 
personal  representative,  although  he  die  'before  the  period  arrives 
for  payment  of  the  money  ;  or  when,  from  the  terms  of  the  be- 
quest, or  from  the  uncertainty  of  the  event,  upon  which  the  legacy 
is  made  payable,  no  immediate  interest  passes  to  the  legatee,  but 
his  title  to  the  legacy  depends  upon  his  being  in  a  condition  to  re- 
ceive it  when  due. 

In  discussing  these  subjects,  the  following  arrangement  will  be 
pursued  : 

SECT.   I.  When  the  gift  of  a  Legacy  is  immediate,  and  no 

time  appointed  for  payment  of  it. 
SECT.  II.   When  the  gift  of  the  Legacy  is  immediate,  and 

the  payment  of  it  postponed  to  a  future  period, 

whether  definite  or  uncertain. 

1 . —  When  the  legacy  will  be  vested — 

As  when  directed  to  be  paid  at  twenty-one, — Or 
At  the  end  of  a  particular  term, — Or 
So  soon  as  debts  are  paid, — Or 

J)  1  Price,  426.  435. 

VOL.   T. 


374  Of  vested  Legacies.  [Cn.  X. 

So  soon  as  the  executors  shall  possess  sufficient  as- 
sets,-— Or 

So  soon  as  particular  lands  are  sold, — Or 
So  soon  as  the  personal  residue  shall  be  laid  out  in 
the  purchase  of  lands. 

2. — When  not  vested. 

SECT.  III.  Where  there  is  no  immediate  express  gift  of  the 
Legacy  distinct  from  the  time  appointed  for  its 
payment. 

FIRST. — When  contingent  from  the  effect  of  conditional 
words. 

SECOND. — When  vested  in  consequence  of  those  words 
not  having  been  used  by  testators  in  a  con- 
ditional sense. 

1. — When  the  legacy  is  given  to  a  trustee,  parent,  or 
guardian  for  the  legatee  at  a  particular  time 
and  to  be  managed  or  applied  for  his  mainte- 
nance or  benefit, — Or 

2.  Where  the  intermediate  interest  is  not  given  for  the 
use  or  benefit  of  the  legatee,  but  to  another  person, — 
During  the  legatees  minority, — Or 
Until  particular  purposes  arefulfilled, — Or 
During  life  ; — and  then 
IN  REMAINDER  to  the  legatee. 

3. — Exceptions  to  the  general  rule  of  a  remainder  and 
particular  interest,  or  estate  vesting  at  the  same 
time,  upon  the  intention  of  testators. 

SECT.  IV.  Of  the  vesting  in  interest  and  transmissibility  of 
contingent  executory  Bequests. 

SECT.  V.  Effect  upon  the  vesting  and  devesting  of  Legacies, 
when  they  are  subjected  to  a  limitation  over  on 
the  happening  of  a  particular  event.  And — 

1. — Where  the  gift  is  immediate,  with  a  limitation  to 
"  survivors"  upon  the  death  of  any  of  the  legatees 
under  twenty-one,  fyc. 

2. — Where  the  event,  upon  which  a  legacy  is  given  over, 
is  so  imperfectly  conceived  and  expressed,  as  to 
render  the  testator's  intention  mere  conjecture  or 
impracticable  to  perform. 

3.—-  Where  the  limitation  over  is,  if  the  legatee  die  before 
receipt  of  the  money,  or  before  the  sale  of  an  estate. 

4. — Where  the  limitation  over  is,  in  case  of  the  death  of 
the  legatee  generally. 

5' — Where  the  limitation  over  is,  "in  case  the  legatee 
die  unmarried,  and  without  having  children  or 
issue." 

6. — When  the  contingencies,  upon  which  legacies  are 


SECT.  I.]          payable  out  of  Personal  Estate.  375 

limited  over,  were  held  not  to  have  happened,  so 
as  to  divest  the  interests  "first  given  ;  And 
7. — Construction  of  the  words  "payable"  fyc.  in  re- 
ference to  the  event  introducing  a  limitaton  over  of 
legacies  or  portions,  as,  if  any  of  the  legatees  die 
before  their  shares  become  payable,  or  payable, 
assignable,  and  transferable. 

FIRST, — Of  Legacies. 
SECOND. — Of  Portions. 

SECT.  VI.  Effect  of  POWERS  OF  APPOINTMENT  on  the  vest- 
ing and  devesting  of  Legacies  and  Portions. 

1. — Where  the  power  is  merely  to  ascertain  the  shares 

each  legatee  is  to  take. 
2. — Where  the  gift  depends  upon  an  execution  of  the 

power. 

SECT.  VII.  As  to  vesting  generally. 

1 . — Instances  of  vested  interests  determining  with  the 
lives  of  the  legatees,  and  not  transmissible. 

2. — When  the  word  "  survivors"  construed  the  same  as 
"  others"  in  favour  of  vesting. 

3. — Where  a  legacy  is  directed  to  be  sunk  in  the  pur- 
chase of  an  annuity. 

4. — When  a  legacy  is  given  generally  "to  be  at  the  dis- 
posal of  the  legatee." 

5. — Where  a  legacy  is  expressed  to  be  given  to  answer  a 
particular  purpose  for  the  benefit  of  the  legatee, 
which  purpose  is  disappointed  and  cannot  take 
effect. 


SECT.  I.  When  the  gift  of  a  Legacy  is  immediate,  and  no  time 
appointed  for  payment  of  it. 

In  bequests  to  individuals,  without  specifying  the  periods  when 
the  money  is  to  be  received,  it  is  payable  at  the  end  of  a  year  next 
after  the  testator's  death.  This  allowance  to  executors  and  adminis- 
trators is  merely  for  convenience,  in  order  that  the  debts,  entitled 
to  a  priority  to  legacies,  may  be  ascertained,  and  the  personal  re- 
presentatives of  the  testator  may  be  acquainted  with  the  amount  of 
the  assets,  so  as  to  be  able  to  make  a  proper  distribution  of  them. 
This  delay  of  payment  being  adopted  as  a  necessary  and  convenient 
arrangement  for  the  due  administration  of  the  estate,  and  for  no 
other  purpose,  will  not  prevent  the  legacies  from  vesting  at  the 
death  of  the  testator. (a)  Hence,  if  a  fund  be  given  to  the  children 
of  A.  those  living  when  the  testator  died  will  take  vested  interests 
in  it,  which  will  entitle  the  personal  representatives  of  such  of  them 
as  happen  to  die  within  the  year  after  the  testator's  decease  to  their 
shares.  The  cases  upon  this  subject  are  collected  in  the  second 
chapter  of  this  work,  which  treats  of  the  "Description  of  Legatees," 

(a)  10  Ves.  13. 


376  Of  vested  Legacies  [Cn.  X. 

and  the  periods  when  they  are  required  to  be  in  esse  for  the  purpose 
of  taking  under  the  description. (6) 

SECT.  II.  When  the  bequest  is  immediate,  and  payment  of  the 
legacy  is  alone  postponed. 

Courts  of  equity  not  being  possessed  of  exclusive  jurisdiction  in 
testamentary  matters,  but  the  Ecclesiastical  Court  holding  a  con- 
currency with  them  on  subjects  of  this  nature,  have,  in  order  to  pre- 
serve uniformity  of  decision,  adopted  some  of  the  rules  of  the  latter 
tribunal,  which  were  taken  or  borrowed  from  the  Roman  law.  In 
consequence  of  this  adoption,  courts  of  equity  have  established  a 
positive  rule  of  construction. 

1 .  That  when  a  legacy  is  given  to  a  person  to  be  paid  or  payable 
at  or  when  he  shall  attain  the  age  of  twenty-one,  or  at  a  future  defi- 
nite period,  the  interest  in  the  legacy  shall  be  considered  to  be  vested 
in  the  legatee  immediately  upon  the  testator's  death,  as  debitum  in 
pr&senti  solvendum  in  futuro,  the  time  being  only  annexed  to  the 
payment,  and  not  the  gift  of  the  legacy.  Hence  it  appears,  that  if  the 
legatee  happen  to  die  before  the  payment  arrives,  his  assignee  or 
personal  representative  will  be  entitled  to  the  legacy. (c) 

Thus  in  Bolger  v.  Mackell,(d")  the  testatrix  gave  her  residuary  es- 
tate to  Catherine,  the  daughter  of  James  Winter,  and  to  the  legiti- 
mate children  of  her  (the  testatrix's)  brothers  John  and  James 
Snowden,  in  equal  shares,  the  proportions  of  sons  with  the  interest 
or  accumulations,  to  be  paid  at  their  ages  of  twenty-one,  and  those 
of  daughters  at  twenty-one  or  marriage,  after  deducting  what  might 
have  been  expended  in  their  maintenance  or  advancement  in  the 
world.  John  Snowden  had  no  issue,  but  James  died  leaving  two 
sons,  neither  of  whom  attained  the  age  of  twenty-one.  And  the 
question  was,  whether,  notwithstanding  that  circumstance,  two- 
thirds  of  the  residue  vested  in  them,  so  as  to  be  transmissible  to  their 
legal  personal  representatives.  And  Lord  Rosslyn  was  of  opinion, 
that  the  two  sons  took  vested  interests,  remarking,  that  the  present 
was  a  mere  bequest  of  the  residue  of  personal  estate,  payable  at 
twenty-one,  so  that  the  rule  as  to  vesting  must  take  place,  which  was 
not  prevented  by  the  addition  of  a  direction  that  maintenance  should 
be  deducted.(e) 

So  in  Jackson  v.  Jackson,(f)  a  testator  bequeathed  to  his  son  R. 
400Z.  "  to  be  paid  to  him  at  the  end  of  one  year  next  after  his  (the 
testator's)  death;  and  the  further  sum  of  100Z.  at  the  death  of  his 
(R.'s]  mother."  JR.  having  died  before  his  mother,  the  question  was, 
whether  he  took  a  vested  interest  in  the  lOOi.1?  And  Lord  Hard- 
wicke  determined  in  the  affirmative,  observing,  that  the  legacy  of 
that  sum  was  plainly  vested,  and  the  time  of  payment  only  postponed ; 
for  the  former  words  "to  be  paid,"  were  to  be  carried  on,  as  they 
would  clearly  be,  if  turned  into  any  other  language. 

(6)  ^wte.Chap.  II.  sect.  1.  p.  59.  1  Ball.  &  Beat.  459.  2  Atk.  122.  2  Ves. 
sen.  209.  1  Br6.  C.  C.  532,  in  notis.  2  Bro.  C.  C.  658.  and  2  Cox,  190.  1  Dick,  344. 

(c)  In  the  Civil  Code  we  find  the  rule  laid  down  in  these  words:  "Ex  his  verbis, 
do,  lego,  ^Elex  Severinae  filex  mex  et  secundse  decem,  quse  legata  accipere  debe- 
bit,  cum  ad  legitimum  statum  pervenerit ;  non  conditio  fidei  commisso  vel  legata 
inserta ;  sed  petito  in  tempus  legitimise  dilata  videtur."  Lib.  6.  tit.  53.  sect.  5. 

(rf)  5  Ves.  509.     See  also  Stafileton  v.  Cheales,  Pre.  Ch.  317.  5.  P. 

(0  Vide  13  Ves.  113.  (/)  i  Ves.  sen.  217 


SECT.  II.]          payable  out  of  Personal  Estate,  377 

Also  in  Sidney  v.  Vaughan,(g]  Mrs.  Evans  bequeathed  to  Edward 
Vaughan  100Z.  to  be  paid  to  him  within  six  months  after  he  should 
have  fully  served  out  his  apprenticeship,  to  which  he  was  then  bound. 
Edward,  instead  of  serving  his  time,  ran  away  from  his  master,  and 
died  intestate  after  the  period  of  his  apprenticeship  expired.  The 
legacy  was  claimed  by  his  administratrix,  upon  the  ground  that  Ed- 
ward took  a  vested  interest  in  it  from  the  death  of  the  testatrix,  as 
the  gift  and  time  of  payment  were  distinct.  And  of  this  opinion 
was  the  Court  of  Chancery  of  Great  Sessions  for  the  counties  of 
Glamorgan,  &c.  and  decreed  the  legacy  with  interest,  to  the  ad- 
ministratrix, from  the  end  of  six  months  after  the  expiration  of  the 
term  of  Edward's  apprenticeship  ;  a  decree  which  was  confirmed  by 
the  House  of  Lords. 

The  construction  will  be  the  same,  if  the  payment  of  the  legacies 
be  expressly  postponed  until  the  testator's  debts  be  discharged ;  for 
in  this  there  is  no  contingency,  the  time  is  easily  ascertained;  and 
the  direction  is  no  more  than  what  the  law  would  have  ordered 
without  it,  since  legacies  are  only  payable  after  the  satisfaction  of 
debts,  (h) 

So,  if  the  testator  declare  that  the  legacies  are  not  to  be  paid  or 
enjoyed  until  the  executors  have  realized  his  estate.  Here,  again, 
no  inference  arises  that  the  legacies  were  not  to  vest  until  realization 
of  the  property,  but  the  time  of  payment  or  enjoyment  alone  is  re- 
ferred to ;  which  is  a  necessary  event,  capable  of  being  reduced  to 
certainty.  A  court  of  equity  has  said,  it  is  the  best  general  con- 
struction (for  there  may  be  exceptions  as  shown  afterward)  to  con- 
sider the  interests  vested  and  in  hand,  though  strictly,  not  collected 
for  the  purpose  of  enjoyment,  as  between  particular  interests  and 
the  capital,  and  the  Court  will  not  conjecture  in  favour  of  an  inten- 
tion against- the  general  rule.(t) 

Accordingly  in  Gaskell  v.  Harman,(k}  Lord  Eldon  thought,  in 
opposition  to  Sir  William  Grant,  that  the  will  did  not  afford  suf- 
ficiently clear  evidence  of  the  testator's  intention  to  postpone 
the  vesting  of -the  bequests  until  the  property  was  collected  and  re- 
ceived. 

In  Stuart  v.  Bruere  (I),  the  intention  to  postpone  the  vesting  till 
a  sale  of  the  estate  was  doubtful,  for,  although  there  were  expres- 
sions pointing  to  an  accumulation  of  the  rents  until  the  sale  ;  yet, 
upon  the  whole,  it  was  ambiguous  whether  the  intention  was  to 
postpone  the  enjoyment  of  the  tenant  for  life  of  the  produce  to  in- 
crease for  the  benefit  of  the  remainder-man  of  the  capital,  of  which, 
at  some  time  or  other,  the  former  was  to  have  the  enjoyment.  That 
time,  however,  was  not  clearly  expressed.  There  was  nothing, 
therefore,  to  controul  the  rule,  "  that  what  is  directed  to  be  done 
is  to  be  considered  as  done ;"  so  that  the  tenant  for  life  was  held 
entitled  from  the  decree  (m). 

The  same  observations  apply  to  the  cases  of  Entwistle  v.  Mark- 
land  (n),  and  Sitwell  v.  Bernard  (o),  where  the  residue  of  personal 
property  was  directed  to  be  laid  out  in  the  purchase  of  real  estates, 

(,§•)  2  Bro.  Parl.  Ca.  254.     8vo.  ed.  (A)  Seem/ra,  p.  380. 

(2)  11  Ves.  498.  (k}  6  Ves.  159.     11  Ves.  489. 

(/)  6  Ves.  529.  innotis,  and  see  Faulkener  v.  Hollingsivorth,  stated  8  Ves.  558. 
(m)  8  Ves.  557.  (n)  6  Ves.  528.  in  notis.  (o)  Ibid.  522. 


378  Of  vested  Legacies  [Cn.  X. 

to  be  settled,  &c.  In  neither  of  those  cases  the  testator  expressed 
in  plain  and  direct  terms  what  was  his  intention.  Tn  the  latter 
case,  a  considerable  difference  arose  from  the  direction  for  accu- 
mulation, and  to  invest  the  produce  in  the  purchase  of  lands  to  be 
settled.  But,  upon  the  whole  will,  it  was  very  doubtful,  whether 
the  words  were  inserted  with  any  deliberate  purpose  of  fixing  the 
period  at  which  the  enjoyment  was  to  commence,  but  postponing 
it  till  all  the  personal  estate  could  be  called  in  and  laid  out.  Such 
a  doubtful  construction  was  therefore  insufficient  to  controul  the 
rule  of  immediate  vesting ;  and  in  each  case  the  interests  were 
holden  to  have  vested  at  the  death  of  the  testator  (j?)  ;  Lord  Eldon 
observing  in  the  latter,  he  would  struggle  for  any  construction 
rather  than  adopt  that,  which  not  from  dilatoriness  of  the  trustees, 
but  only  from  circumstances  to  which  probably  the  testator  did  not 
advert,  had  a  tendency  wholly  to  disappoint  his  intention  as  to  the 
beneficial  enjoyment  (9). 

Such  is  the  rule  of  construction,  when  an  immediate  bequest  is 
made  to  one  or  more  persons,  and  the  payment  or  enjoyment  of  it 
is  postponed  to  a  future  definite  period ;  the  gift  being  distinct 
from  the  time  appointed  for  the  legatee  io  receive  his  legacy.  But 
this  rule  is  always  subservient  to  the  intention  of  testators. 

2.  If,  therefore,  upon  sound  construction  of  a  will,  it  appear  that 
the  testator  meant  the  time  of  payment  to  be  the  period  at  which  a 
legacy  should  vest,  although  it  be  given  in  terms  of  immediate  be- 
quest, with  a  direction  for  payment  to  the  legatee  at  twenty-one, 
or  other  definite  period,  and  so  far  within  the  rule  of  vesting,  which 
has  been  considered ;  yet  the  case  will  form  an  exception  to  such 
rule,  and  the  legatees  living  to  attain  the  age  of  maturity,  or  other 
period  of  payment  is  of  the  essence  of  the  bequest;  for,  if  he  pre- 
viously die,  he  will  have  taken  no  interest  in  the  legacy  to  transmit 
to  his  personal  representative.  The  following  case  is  an  illustration 
of  the  above  proposition. 

In  Mackell  v.  Winter  (r*),  Mrs.  Snoivden  bequeathed  her  residua- 
ry estate  to  her  two  grand-sons,  and  to  her  grand-daughter,  Cathe- 
rine Winter,  in  equal  proportions  ;  the  shares  of  grand-sons,  with 
the  interest  or  accumulations,  after  deducting  maintenance  and 
education,  to  be  paid  to  them  at  their  ages  of  twenty-one ;  and  the 
share  of  her  grand-daughter,  with  the  interest  or  accumulation;  to 
be  paid  to  her  at  twenty-one,  or  marriage.  The  testatrix  empow- 
ered her  executors  to  apply,  at  their  discretion,  a  part  of  the  inte- 
rest of  the  grand-sons'  shares  for  their  maintenance  and  preferment  : 
and  declared,  that  if  her  grand-daughter  died  under  twenty-one, 
and  unmarried,  her  residuary  share,  with  the  accumulated  interest, 
should  be  equally  divided  beween  the  two  grand-sons  ;  but  in  case 
of  either  of  their  deaths,  the  whole  should  be  paid  to  the  survivor; 
and  if  either  of  them  died  under  twenty-one,  the  survivor  should 
take  his  share ;  and  in  case  both  grand-sons  died  under  twenty- 
one,  and  her  grand-daughter  under  that  age,  and  unmarried,  the 
whole  of  their  respective  shares,  with  the  accumulations,  were  to 
be  paid  to  the  testatrix's  nephew,  John  Bandy ;  and  in  case  of  his 
death  to  his  children,  &c.  The  grand-daughter  attained  twenty- 

(/O  See  8  Ves.  557.  (y)  6  Ves.  541.  (r)  3  Ves.  236.  536. 


SECT.  II.]  payable  out  of  Personal  Estate.  379 

one,  but  the  two  grand-sons  died  under  that  age  ;  and  the  personal 
representative  of  the  survivor  claimed  two-thirds  of  the  residue 
under  the  limitation  to  the  surviving  grand-son  contained  in  the 
will,  contending  that  the  grand-sons  took  vested  interests  in  the 
two-thirds,  under  the  positive  rule  before  mentioned  ;  the  time  of 
payment  not  being  annexed  to  the  substance  of  the  gift.  And 
Lord  Mvanley  was  of  that  opinion,  and  so  decided ;  but  Lord 
Rosslyn  reversed  the  decree  on  appeal,  upon  the  principle,  that  the 
contents  of  the  will  sufficiently  indicated  the  testatrix's  intention, 
that  none  of  her  grand-children  should  take  vested  interests  before 
they  became  entitled  to  receive  their  respective  shares  of  the  resi- 
due. And  his  Lordship,  upon  the  clearness  of  such  intention,  de- 
clared, that  the  grand-daughter  was  entitled  to  the  whole  residue, 
although  the  shares  of  the  grand-sons  were  not  expressly  given  to 
her  upon  their  dying  under  twenty-one  ;  thus  raising  by  implica- 
tion cross  remainders  among  them. 

The  reasons  of  Lord  Rosslyri's  opinion  appear  to  have  been  these  : 
He  considered  the  plan  of  the  will  as  manifesting  the  testatrix's  in- 
tention ;  first,  to  provide  for  her  three  grand-children,  and  contin- 
gently for  her  nephew  and  his  children.  If  all  or  any  of  the  grand- 
children lived  to  a  period  when  her  fortune  might  be  serviceable  to 
them,  the  whole  of  it,  with  the  accumulations,  was  to  belong  to  them 
or  the  survivor  ;  but,  if  none  of  them  arrived  at  that  period,  then  the 
whole  of  the  accumulations  jj^as  to  go  to  her  nephew.  In  executing 
this  scheme  in  detail,  the  testatrix  declared,  that  if  her  two  grand- 
sons attained  twenty-one  ;  and  her  grand-daughter  lived  to  that  age, 
or  sooner  married,  they  were  to  receive  the  whole  of  her  property, 
with  the  accumulations,  in  equal  shares  ;  but  if  her  grand-daughter 
died  unmarried  under  twenty-one,  her  grand-sons  should  take  that 
share,  with  the  accumulations  ;  and  if  either  grand-son  died  under 
twenty-one,  the  survivor  should  be  paid  the  whole  residue,  omitting 
to  give  to  the  grand-daughter  the  shares  of  the  grand-sons  in  the 
event  (which  happened)  of  their  dying  under  twenty-one,  a  mistake 
which  was  corrected  by  the  Court  upon  the  inference  drawn  from 
the  limitation  over  of  the  fund  to  the  nephew,  who  was  to  take 
nothing,  except  upon  the  death  of  the  grand-sons  under  twenty-one, 
and  of  the  grand-daughter  dying  under  that  age,  unmarried  ;(s)  a 
limitation  which  was  not  only  sufficient  by  implication  to  entitle  the 
grand-daughter  to  the  shares  of  the  grand-sons  who  died  under 
twenty-one,  in  the  nature  of  a  cross  remainder,  but  also  to  show  in 
concurrence  with  the  other  circumstances,  the  testatrix's  intention 
that  no  grand-child  should  take  a  vested  interest  in  its  share,  until 
the  time  of  payment  arrived. 

In  Howes  v.  Uerring,(t)  there  was  a  bequest  to  trustees  of  all  the 
testator's  personal  estate  to  convert  into  money,  and  apply  the  inte- 
rest to  the  maintenance  of  his  children,  the  surplus  to  accumulate, 
and  upon  their  severally  attaining  twenty-one,  to  each  of  them  2500Z.; 
and  in  case  of  any  overplus,  to  divide  the  same  amongst  all  his  said 
children,  "  or  such  of  them  as  should  be  living  when  the  youngest 
should  attain  twenty-one"  The  event  was,  that  all  attained  twenty- 
one,  but  one  died  leaving  a  child  before  the  peried  of  division,  name- 

(«)  See  8  Ves,  12.  (0  1  M'Cl.  &  Yo.  295. 


380  Of  vested  Legacies  [Cn.  X. 

ly,  before  the  youngest  attained  twenty-one.  And  it  was  held,  that 
the  child  so  dying,  took  no  vested  interest  in  the  share  of  the  over- 
plus, but  that  it  went  to  the  surviving  children  of  the  testator. 

A  second  exception  to  the  rule  of  immediate  vesting  occurs,  where 
a  testator  has  shown  a  clear  intention  that  no  interest  should  vest  in 
his  legatees  before  his  debts  were  satisfied.  In  those  instances  the 
intenton  must  prevail,  and  the  bequests  will  be  contingent  until  the 
debts  might  have  been  paid  upon  a  due  administration  of  the  assets. 
What  that  period  might  have  been,  a  court  of  equity  will  inquire 
into  ;  for  that  court  will  not  permit  the  rights  of  legatees  to  be  pre- 
judiced by  the  fraudulent  or  unnecessary  delay  of  executors  or 
trustees. 

Thus  in  Bernard  v.  Montague,(u)  the  trusts  of  a  term  of  500  years, 
vested  in  trustees,  were  declared  to  be,  to  raise  by  rents  and  profits, 
or  mortgage,  or  sale,  sufficient  money  to  pay  debts  in  aid  of  the  per- 
sonal fund;  and  then  to  raise  2200Z.  a  piece  for  the  testator's 
daughters  as  portions,  "  such  portions  to  become  due  and  to  be  con- 
sidered as  vested  in  them  at  the  expiration  of  two  years  next  after 
the  testator's  death,  if  his  debts  should  then  be  paid;  but  nevertheless, 
so  as  such  portion  should  not  bear  interest.  The  next  trust  was,  to 
raise  maintenance  out  of  the  rents  and  profits,  "  until  the  portions 
should  become  payable,  and  should  be  actually  so  raised  as  afore- 
said ;"  or,  as  expressed  in  another  part  of  the  will,  "  until  they  should 
be  actually  levied  and  paid  as  aforesaid-'*  A  further  trust  was  de- 
clared to  pay  annuities  to  the  testator's  sons,  "  until  his  debts  should 
be  paid  ;"  and  then  followed  a  declaration,  that  the  portions  of  the 
daughters  should  sink  into  the  estate,  if  any  of  them  died  "before 
the  portions  as  aforesaid  should  become  due  or  vest."  The  estate 
being  situate  in  Jamaica,  the  testator  directed  that  the  slaves  should 
remain  and  be  employed  on  it  "  until  his  debts  and  the  provisions 
for  his  daughters  should  be  raised  and  paid,  and  the  other  trusts  sa- 
tisfied and  fulfilled.  The  daughters  died  before  the  debts  were  paid, 
and  the  question  was,  whether,  notwithstanding  that  accident,  they 
took  vested  interests  in  the  portions  transmissible  to  their  personal 
representatives  <?  Sir  W.  Grant  declared  that  the  intention  of  the 
testator  was  sufficiently  manifest  from  the  will  to  postpone  the  vest- 
ing until  his  debts  had  been  paid.  And  in  order  to  ascertain  the 
period  when  they  might  have  been  discharged,  an  inquiry  was 
directed. 

A  third  exception  to  the  rule  of  immediate  vesting  may  arise 
where  a  testator  has  plainly  and  with  certainty  expressed  his  inten- 
tion that  the  legacies  shall  not  vest  until  his  property  has  been  sold 
or  realized,  and  got  in  by  his  executors,  or  be  laid  out  in  a  pur- 
chase. For,  if  a  testator  think  proper,  whether  prudently  or  not, 
to  say  distinctly,  showing  a  manifest  intention,  that  his  legatees, 
general  or  residuary,  shall  not  be  entitled  to  the  property  unless 
they  live  to  receive  it;  nor  to  the  produce  of  his  real  estate  until  a 
sale,  nor  to  lands  until  they  be  purchased,  there  is  no  law  against 
such  intention,  if  clearly  expressed.  But  if  the  words  admit  of  such 
meaning  not  being  imputed  to  the  testator,  it  will  not  be  imputed 

(«)  1  Meriv.  422.  et  vide  Smalt  v.  Wing,  3  Bro.  Parl.  Ca,  503.  8vo.  ed.  and 
stated  1  Meriv.  428. 


SECT.  II.]  payable  out  of  Personal  Estate.  381 

to  him,  as  has  been  before  noticed. (x)  If,  however,  the  intention 
be  clear,  it  is  the  duty  of  the  executors  or  trustees  to  call  in  the 
property,  sell  the  estate,  and  invest  the  produce  in  a  purchase  for 
the  benefit  of  the  persons  interested,  and  with  all  due  diligence; 
since  no  discretion  is  left  to  them.(y)  And  whether  they  have  done 
their  duty,  will  be  inquired  into  by  the  Court,  as  in  the  case  last 
stated. 

Thus  in  Elwin  v.  Elwin,(z)  after  stated,(a)  the  direction  was  to 
sell  and  divide  the  produce  of  real  estate  among  five  persons,  "  at 
such  time  as  the  sale  should  be  completed,  in  case  they  were  then 
living:"  and  Sir  W.  Grant,  M.  R.  was  of  opinion,  that  the  interests 
were  contingent  until  a  sale,  without  the  fault  of  the  trustees,  was 
or  might  have  been  made ;  and  in  order  to  ascertain  that  fact,  he 
directed  an  inquiry. 

A  fourth  exception  must  be  made  out  of  the  positive  rule  appli- 
cable to  the  vesting  of  legacies,  where  the  gift  of  the  legacy  and 
the  time  of  payment  are  in  terms  distinct,  when  the  period  for  pay- 
ment is  contingent,  as  upon  the  marriage,  or  the  taking  of  holy 
orders  of  the  legatee ;  for  in  neither  of  those  instances,  will  the 
legacy  vest  before  the  happening  of  the  contingency,  as  we  have 
seen  it  would  have  done,  had  the  time  of  payment  been  certain. 
The  distinction  is  founded  upon  the  following  reasoning.  It  must 
be  inferred,  that  where  the  time  is  certain,  as  when  the  legatee 
attains  the  age  of  twenty-one,  the  testator  merely  postponed  the 
payment  of  the  legacy  in  consideration  of  the  legatee's  unfitness  to 
manage  his  affairs  prior  to  that  period;  but  when  the  event  annexed 
to  the  payment,  may  or  may  not  happen,  it  is  to  be  presumed,  that 
the  expectation  of  its  taking  place,  was  the  sole  motive,  and  there- 
fore of  the  essence  of  the  bequest. (6) 

Accordingly,  in  Mkins  v.  Hiccocks,(c)  the  bequest  was  of  200Z. 
to  Eliz.  Hiccocks,  to  be  paid  at  the  time  of  her  marriage,  or  within 
three  months  afterwards,  provided  she  married  with  the  approba- 
bation  of,  &c.  The  testator  also  gave  to  Elizabeth  an  annnity, 
until  that  event  took  place ;  but  she  died  without  ever  having  been 
married,  after  having  attained  the  age  of  twenty-one.  The  question 
was,  whether  Elizabeth  took  such  a  vested  interest  in  the  legacy,  as 
was  transmissible  to"  her  administrator1?  And  Lord  Hardwicke  de- 
termined in  the  negative ;  upon  which  occasion  he  remarked,  that 
in  the  common  cases  of  legacies  to  be  paid  at  the  age  of  twenty- 
one,  there  was  a  certain  time  fixed,  not  to  the  thing  itself,  but  to 
the  execution  of  it;  and  the  time  so  fixed  must  necessarily  arrive. 
But  that  when  the  time  annexed  to  the  payment  was  merely  eventual, 
and  might  or  might  not  come,  and  the  person  died  before  the  con- 
tingency happened,  his  Lordship  could  find  no  instance  in  the 
court,  where  it  had  been  decided  that  the  legacy  should  be  paid  at 
all  events. 

It  may  be  concluded  from  these  observations,  that  when  the 
event,  upon  which  a  legacy  is  directed  to  be  paid,  is  uncertain  as 
to  its  ever  taking  place,  the  legacy  will  not  vest  previously  to  the 

(x}  Ante,  p.  378.  and  see  11  Ves.  497.         (y}  11  Ves.  498.          (r)  8  Ves.  547. 
(a)  Infra,  sect.  5.     (£)  Godolph,  Orph.  Leg.  452.  Swinb.  pt.  4.  sect.  17.  p.  267. 
(c)  1  Atk.  500. 
VOL.  I.  3  C 


382  Of  vested  Legacies  [Cn.  X. 

happening  of  that  event;  and  that  it  is  immaterial  in  this  respect, 
whether  the  gift  and  the  time  of  payment  be  in  form  distinct,  as  in 
the  last  case,  or  whether  there  be  no  gift,  except  in  the  direction 
for  payment  of  the  legacy,  as  in  the  cases  below  referred  to;(d) 
since,  in  each  instance,  the  taking  place  of  the  event,  is  a  condition 
precedent  to  the  vesting  of  the  legacy,  according  to  the  maxim  that 
dies  incertus  in  testamento  conditionemfacit. 

It  seems,  however,  that  this  maxim  is  not  without  exception,  for 
it  must  yield  to  the  intention  of  testators.  That  intention  was  con- 
sidered by  Lord  Alvanley  in  the  following  case,  to  be  sufficiently 
apparent,  attending  to  the  subject  of  bequest,  which  was  a  residue, 
the  ages  of  the  legatees,  and  the  manner  of  the  gift.(e) 

The  case  refered  to,  is  Booth  v.  Booth,(f)  in  which  Mr.  Bragge, 
having  two  great-nieces,  both  of  age,  named  Phoebe  and  Ann  Booth, 
devised  the  residue  of  his  estate  to  trustees,  in  trust,  to  place  it  out 
at  interest,  and  pay  the  annual  produce  to  Phoebe  and  Ann  Booth, 
until  their  marriages,  and  immediately  after  their  respective  mar- 
riages, to  assign  to  them  respectively  their  several  shares,  Phoebe, 
after  surviving  the  testator,  died  without  ever  being  married,  and 
the  question  was,  whether,  notwithstanding  Phoebe  never  married, 
she  took  a  vested  interest  in  her  moiety,  which  was  transmissible  at 
her  death  to  her  personal  representatives,  one  of  whom  was  her  sis- 
ter Ann,  and  unmarried,  and  also  her  residuary  legatee'?  Lord 
Alvanley,  after  great  consideration,  and  a  full  review  of  the  authori- 
ties upon  the  present  subject,  determined,  that,  as  this  was  a  residue, 
and  the  marriages  required  were  annexed  to  the  times  of  payment, 
and  not  to  the  gifts  of  the  legacies,  Phoebe  took  a  vested  interest  in 
her  share,  to  which  Ann,  as  her  residuary  legatee,  was  immediately 
entitled,  although  Ann  could  not  claim  her  own  original  share  pre- 
viously to  marriage ;  his  Lordship  observing,  that  the  Court  had  never 
accelerated  the  payment,  and  that  an  interest  might  be  vested  and 
disposable,  but  not  tangible,  in  the  meantime,  a  provision  which 
might  be  wisely  intended  for  the  benefit  of  the  legatee. 

In  the  last  case,  it  was  contended  that  marriage  was  not  merely 
annexed  to  the  payment  of  the  shares,  but  "also  to  the  gifts  of  them, 
so  as  to  make  the  marriages  of  the  grand-nieces  an  indispensable 
preliminary  to  the  vesting  an  interest  of  their  proportions.  But 
Lord  Alvanley  considered  the  terms  of  the  devise,  as  equivalent  to 
the  testator  declaring  a  trust  of  the  residue  for  the  grand-nieces, 
with  a  direction  to  pay  to  them  the  interest  until  they  married,  and 
then  to  assign  the  principal ;  that  it  was  not  merely  a  gift  of  the  in- 
terest till  marriage,  stopping  there,  and  after  marriage,  a  gift  of  the 
capital,  for  it  was  clear  that  the  testator  considered  the  principal  to 
have  been  immediately  given,  and  therefore  spoke  of  it  as  "  the 
shares"  of  the  legatees  of  the  residue,  the  possession  of  which  they 
were  to  receive  when  they  severally  married ;  thus  distinguishing 
between  the  gift  of  the  residue,  and  the  time  and  event  when  the 

(d)  Garbut  v,  Hilton,  1  Atk.  381.     Elton  v.  Elton,  3  Atk.  504.  Hemmings  v. 
Munckley,  1  Bro.  C.  C.  304.    Knight  v.  Cameron,  14  Ves.   389.     Malcolm  v. 
O'Callaghan,  2  Mad.  349. 

(e)  See  Bird  v.  Hunsdon,  2  Swanst.  342.  also  Jones  v.  Mackiltoain,  1  Russ. 
C.  C.  220.  (/)  4  Ves.  399. 


SECT.  II.]          payable  out  of  Personal  Estate.  383 

possession  of  it  was  to  be  delivered.  Lord  Alvanhy,  in  the  above 
manner  having  attempted  to  prove  that  the  marriages  of  the  legatees 
were  conditions  subsequent,  not  precedent,  to  the  vesting  of  the  pro- 
perty, arid  in  addition,  after  remarking  how  improbable*  it  was  that 
the  testator  should  not  have  disposed  of  the  residue  in  the  event  of 
his  grand-nieces  not  marrying,  if  he  had  not  intended  to  bequeath 
to  them  the  absolute  interest  in  it,  proceeded  to  show  that  the 
authorities  Garbut  v.  Hilton,  Atkins  v.  Hiccocks,  and  Elton  v. 
Elton  (before  referred  to)  were  inapplicable  to  the  present  case, 
since  none  of  them  were  dispositions  of  residue,  and  the  marriages 
in  those  instances  were  required  to  be  had  with  consent.  It  was 
under  those  circumstances,  and  on  the  ground  of  the  bequest  being 
of  a  residue,  to  persons  of  maturity,  a  circumstance  relied  upon  by 
him,  as  also  upon  the  words  of  the  devise,  that  his  Lordship  declared 
the  present  to  be  a  case  to  which  the  maxim  dies  incertus  in  testa- 
mento  conditionem  facit  could  not  be  applied. 

The  last  case  must  not  be  considered  as  an  authority,  that  in  ge- 
neral a  residuary  bequest  will  vest  before  the  event  happens  upon 
which  it  is  given.  It  proves  quite  the  contrary.  The  whole  tenor 
of  Lord  Mvanley's  argument  shows  that  the  gift  of  a  residue  upon  a 
contingency,  or  where  there  is  no  gift,  but  by  a  direction  to  transfer 
it  from  and  after  or  at  a  given  event,  the  vesting  will  be  deferred 
till  the  event  has  happened,  unless  from  particular  circumstances  (as 
in  the  last  case)  a  contrary  intention  can  be  collected  from  the  will. 
And  in  conformity  with  this  distinction,  Sir  W.  Grant  determined 
in  Leake  v.  Robinson,(g)  that  a  residuary  disposition  of  real  and 
personal  estate,  upon  trust  to  assign  and  transfer  to  such  children  as 
shall  attain  the  age  of  twenty-five,  with  benefit  of  survivorship  among 
them,  did  not  vest  before  the  legatees  attained  that  age. 

SECT.  III.  When  there  is  no  express  gift  of  the  legacy  previ- 
ously to  the  time  appointed  for  its  payment. (h )  And, — 

FIRST. — When  the  legacy  is  contingent  from  the  effect  of  condi- 
tional words. 

In  the  beginning  of  this  chapter  it  was  noticed  that  legacies  given 
to  persons  payable  or  to  be  paid&t  or  when  they  attained  twenty-one, 
vested  the  interests  in  the  funds  in  the  legatees,  which  entitled  their 
personal  representatives  to  the  property,  although  they  (the  legatees) 
died  before  arriving  at  those  ages,  upon  the  principal  that  the  gift  of 
the  legacies  was  distinct  from  the  periods  appointed  for  their  pay- 
ment. And  it  is  to  be  observed,  that  the  words  paid  and  payable 
are  considered  so  material,  that,  if  they  be  omitted,  and  the  bequests 
made  to  the  legatees,  as,  if,  provided,  in  case  of,  or  when  they  attain 
twenty-one,  those  expressions  will,  without  being  controlled  by  the 
context  of  the  will,  constitute  the  times  of  payment  as  of  the  essence 
of  the  bequests  ;  and  consequently,  the  legatees  can  take  no  vested 
interests  until  they  attain  twenty-one.  We  shall,  therefore,  proceed 
to  give  instances  where  those  words  were  held  to  postpone  the  vest- 
ing until  the  legacies  became  payable,  beginning  with  the  word  "at." 

In  Smell  v.  Dee,(i]  the  bequest  was  of  100/.  a-piece  to  the  two 

(g)  2  Meriv.  363.  384. 

(A)  See  Batsford  v.  Kebbel,  3  Ves.  363.  and  Sansbury  v.  Read,  12  Ves.  75. 

(0  2  Salk.  415. 


384  Of  vested  Legacies  [Cu.  X. 

children  of  J.  S.  "  at  the  end  of  ten  years  next  after  the  testator's 
death."  The  legatees  died  before  the  expiration  of  the  ten  years. 
Lord  Cowper  held  the  legacies  to  be  extinct,  and  said,  "  that  wher- 
ever the  time  is  annexed  to  the  legacy,  and  not  to  the  payment  of  it 
(as  in  the  present  case,)  if  the  legatee  die  before  the  day  of  pay- 
ment, the  legacy  is  lapsed." 

So  in  Onsloiv  v.  South,(k)  the  testator  being  possessed  of  consi- 
derable personal  estate  in  Jamaica  and  in  England,  bequeathed  as 
follows  :  "  I  give  to  J.  S.  now  under  the  custody  of  R.  D.  20001.  at 
the  age  of  twenty-one  years,  to  bepaid  by  my  executors  in  England." 
J.  S.  died  under  twenty-one,  but,  having  attained  the  age  of  eigh- 
teen, he  bequeathed  this  legacy  to  the  defendant  South;  the  validity 
of  which  disposition  depended  upon  the  question,  whether  J.  S. 
took  a  vested  interest  in  the  money  before  the  age  of  twenty-one. 
And  the  Lord  Chancellor  determined  that  the  legacy  did  not  pass  to 
the  defendant,  since  J.  S.'s  interest  in  it  was  not  vested,  but  contin- 
gent ;  and  his  Lordship  remarked,  that  the  word  "  now"  was  merely 
descriptive  of  the  condition  of  the  legatee,  and  that  the  word  "  paid" 
was  only  applicable  to  the  persons  'by  whom  the  money  was  to  be 
satisfied. 

Also  in  Cruse  v.  Barley,(l)  where  the  testator  gave  to  his  eldest 
son  Christopher  Banson,  2001.  at  his  age  of  twenty-one.  Christo- 
pher died  under  twenty-one,  and  it  was  determined  that  the  legacy 
never  vested  in  him ;  as  the  age  was  annexed  to  the  gift,  and  not  to 
the  payment,  and  consequently,  his  personal  representative  could 
not  be  entitled  to  the  money. 

Since  a  bequest  to  A.  at  twenty-one  will  not,  as  has  been  shown, 
vest  in  him  before  he  attains  that  age,  as  the  gift  and  the  payment 
of  the  legacy  are  indivisible ;  so  neither  will  a  legacy  given  to  A. 
"  if"  he  attain  twenty-one,  vest  at  an  earlier  period.  For  until  the 
event  happens,  that  which  is  grounded  upon  it  cannot  take  place. 
The  word  is  strictly  conditional ;  and  according  to  the  civil  law 
(which  supplies  the  ecclesiastical  courts  and  courts  of  equity  with 
most  of  their  rules  in  the  construction  of  legacies,)  a  bequest  so  ex- 
pressed would  not  vest  the  interest  in  the  legatee  prior  to  the  age  of 
twenty-one. (m) 

The  word  provided  is  also  a  conditional  term  ;  so  that,  if  a  bequest 
were  made  to  B.  "  provided"  he  attain  twenty-one,  the  legacy  will 
not  vest  in  him  before  he  arrives  at  that  age. 

Thus  in  Atkinson  v  Turner,(n)  the  testator  gave  two-thirfls  of 
three-eighths  of  his  joint  stock  and  trade  to  his  grandson,  Richard 
Turner,  provided  he  should  attain  the  full  age  of  twenty-one,  with 
remainder  over  if  he  did  not  live  to  that  period.  Richard  died  under 
twenty-one ;  and  the  question  was,  whether  his  administrator  was 
entitled  to  the  profits  which  accrued  from  the  death  of  the  testator 
to  that  of  his  own  ;  which  depended  upon  the  circumstance  whether 
he  took  a  vested  interest  in  the  legacy  during  minority.  And  the 
Master  of  the  Rolls  determined  in  the  negative  ;  considering,  that 

(*)  1  Eq.  Ca.  Abr.  295.  pi.  6.  (/)  3  P  Will.  20. 

(m)  Dig.  Lib.  36.  tit.  2  s,ec.  22.  and  see  Brownsivord  v.  Edwards,  2  Ves.  sen. 
243.  248.  Denn\.  Bagshain^  6  Term.  Rep.  512.  1  New  Rep.  C.  P.  325.  Co. 
Litt.  204.  3  Ves.  735. 

(rc)  2  Atk.  41  and  see  Garbut  v,  Hilton,  1  Atk.  381.  and  14  Ves.  392.  ' 


SECT.  II.]         payable  out  of  Personal  Estate.  385 

by  the  words  of  the  will  nothing  vested  in  the  legatee,  since  he  did 
not  attain  the  age  of  twenty-one. 

The  last  case  is  peculiar  in  this  respect,  that  it  was  the  bequest  of 
a  partnership  and  the  profits  of  a  trade.  But  the  Court  said,  that 
was  of  no  consequence,  for  the  more  general  the  rule  was  made,  so 
much  the  better;  it  being  very  dangerous  to  run  into  niceties,  to 
distinguish  from  it  any  particular  case,  as  that  must  necessarily  oc- 
casion uncertainty  and  confusion. 

Similarly  to  the  expressions  before  considered,  the  words  "in 
case"  import  contingency.  Suppose  then  a  legacy  be  given  to  JL 
in  case  he  marry  with  consent,  or  in  case  he  attained  twenty-one ;  or 
to  be  paid  to  him  in  case  he  live  to  that  age,  and  not  otherwise. 
Jl's  marriage  with  consent,  or  his  arrival  at  twenty-one,  must  pre- 
cede his  taking  a  vested  interest  in  the  bequest. 

Accordingly  in  the  case  of  Elton  v.  Elton,(o]  where  the  testator 
gave  to  his  grand-daughter,  Anna  Elton,  1500Z.  to  be  at  her  dis- 
posal, in  case  she  married  with  consent,  &c.  Lord  Hardwicke  held, 
that  marriage  was  a  condition  precedent  to  the  vesting  of  the  lega- 
cy ;  observing,  that  whether  a  testator  said,  "  in  case  she  marry,  I 
give,  or,  I  give  in  case  she  marry"  made  no  difference  ;  for  in  both 
instances,  marriage  is  annexed  to  the  substance  of  the  devise. 

And  in  Knight  v.  Cameron,(p)  the  bequest  was  of  1000Z.  to 
Frances  Douglas,  to  be  paid  to  her  as  soon  as  she  attained  twenty- 
one  ;  and  in  case  she  should  live  to  attain  that  age,  and  not  other- 
wise. Sir  W.  Grant  observed,  it  was  impossible  to  say  that  this 
was  not  a  condition  precedent  either  to  the  payment  or  the  vesting. 

Much  diversity  of  opinion  has  existed  upon  the  proper  construc- 
tion of  the  word  "when."  Some  persons  have  considered  the  ex- 
pression as  denoting  a  precedent  condition,  annexing  the  time  or  ac- 
tion to  the  substance  of  the  gift ;  while  others  have  interpreted  the 
word  as  solely  indicative  of  the  testator's  intention  to  mark  the  pe- 
riod, at'which  his  legatee  should  have  the  possession  and  full  benefit 
of  the  bequest,  and  not  to  make  the  living  of  the  legatee  at  the  time, 
essential  to  the  legacy  taking  effect,  Lord  jilvanley  in  May  v. 
Wood,(q)  was  of  the  latter  opinion ;  and  determined  that  a  bequest 
to  t#.  and  B.  to  be  equally  divided  between  them  when  they  should 
attain  twenty-one  vested  in  them  at  the  death  of  the  testator.  His 
Lordship  made  the  decision.without  regard  to  the  effect  of  the  words 
"  equally  to  be  divided,"  which  being  synonimous  with  the  words 
"  to  be  paid,"  appear  sufficient,  according  to  the  rule  stated  in  the 
first  section,  to  have  imparted  vested  interests  to  the  legatees  at  the 
death  of  the  testator.  However,  the  case  of  May  v.  Wood,  may  be 
considered  a  determination,  that  if  a  legacy  be  given  to  A.  when  he 
attains  twenty-one,  the  interest  will  vest  in  him,  and  be  transmissible 
to  his  personal  representative  at  his  death  under  that  age. 

The  above  decision  of  Lord  Alvanley  was  carefully  and  maturely 
considered  by  Sir  William  Grant  in  Hanson  v.  Graham.(r]  And 
although  that  case  did  not  require  his  Honour  to  determine  it  against 
the  principle  upon  which  Lord  Jilvanley  professed  to  decide  the 
case  of  May  v.  .Wood,  yet  so  well  satisfied  was  he  that  such  prin- 
ciple was  erroneous,  as  to  induce  him  to  declare,  that  had  there  been 

(o)  3  Atk,  504.       (/O  14  Ves.  389.      (?)  3  Bro.  C.  C.  471      (r)  6  Ves.  239. 


386  Of  vested  Legacies  [Cn.  X. 

no  other  circumstances  in  the  case  then  under  his  consideration,  but 
his  opinion  had  been  requested  in  regard  to  the  vesting  or  not  vesting 
of  the  legacies  which  were  given  "  to  B.,  C.  and  D.  when  they  re- 
spectively attained  their  ages  of  twenty-one  or  days  of  marriage," 
he  would  have  decided  that  they  did  not  vest  in  the  legatees  be- 
fore the  happening  of  one  of  those  events.  His  Honour,  upon  the 
proposition,  stated  in  the  report  of  May  v.  Wood  to  have  been  laid 
down  by  Lord  Mvariley,  viz.  "  that  all  the  cases  for  half  a  century 
upon  pecuniary  legacies  had  determined  the  word  when  not  as  denot- 
ing a  condition  precedent,  but  as  only  marking  the  period  when  the 
party  should  have  the  full  benefit  of  the  gift,  except  something  ap- 
peared upon  the  face  of  the  will  to  show  that  his  bounty  should  not 
take  place,  unless  the  time  actually  arrived,"(s)  observed,  that  no 
case  had  determined  the  word  when,  as  referred  to  a  period  of  life, 
standing  by  itself,  and  unqualified  by  any  words  or  circumstances, 
to  denote  merely  the  time  at  which  it  was  to  take  effect  in  posses- 
sion, but  to  be  a  word  of  condition,  denoting  the  time  when  the  gift 
was  to  take  effect  in  substance. 

His  Honour's  observations  must  be  confined  to  testamentary  dis- 
positions of  personal  property,  which  are  regulated  by  the  rules  of 
the  civil  law  :  for  it  seems  to  be  settled,  that  if  freehold  estate  be  de- 
vised to  A,  when  he. shall  attain  twenty-one,  A.  will  take  an  imme- 
diate vested  interest  in  the  subject,  whether  the  devise  be  immediate 
or  in  remainder. (t) 

By  the  civil  law,  the  words  "when"  an^  "  if"  are  of  the  same 
import  in  speaking  of  an  uncertain  event.  Both  are  words  of  con- 
dition annexed  to  the  very  gift  of  the  legacy,  when  unexplained  by 
the  context  of  the  will.(w)  The  construction  is  the  same  in  courts 
of  equity,  which  adopt  the  rules  of  the  civil  code  upon  the  present 
subject. 

Accordingly,  in  Stapleton  v.  Cheales(x}.  it  was  stated  by  counsel, 
and  agreed  to  by  the  Court,  that  if  a  legacy  be  given  to  a  person 
when  he  shall  attain  the  age  of  twenty-one  years,  and  the  legatee 
die  during  minority,  the  bequest  is  lapsed,  and  shall  not  go  to  his 
executors  or  administrators^;  a  proposition,  which  Sir  William 
Grant  declared,  in  Hanson  v.  Graham,  that  he  did  not  find  contra- 
dicted by  any  authority. 

Agreeably  therefore  with  the  civil  law,  and  with  our  own  found- 
ed upon  it  in  personal  bequests,  as  admitted  in  the  case  of  Stapleton 
v.  Cheales,  it  may  be  -reasonably  concluded  that  a  bequest  to  a  per- 
son when  he  shall  attain  twenty-one,  is  contingent  during  his  infan- 
cy, so  as  not  to  entitle  his  personal  representative  to  receive  it  if 
he  die  before  twenty-one  (y}. 

But  all  these  and  other  similar  words  of  condition  may  be  so  ex- 
plained and  controlled  by  the  context  of  the  will,  ap»not  to  prevent 
the  legacies  from  vesting  before  the  happening  of  the  events, 
upon  which  they  are  made  'payable.  In  such  instances,  the  inten- 
tion of  testators  will  predominate  over  technical  words  and  expres- 

(s)  3  Bro.  C.  C.  474. 

(0  Doev.  Moore,  14  East,  601.  and  see  1  Maul.  &  Sehv.  334.  and  Mac/tin  v. 
Reynolds,  3  Brod.  &  Bing.  121.  '  (w)  Dig.  Lib.  36.  tit.  2,  sect.  22. 

(a?)  Pre  Ch.  317.  and  see  Grant's  case,  stated  10  Rep.  50  a,  andCro.  Car.  435. 
(y)  9  Ves.  230.     1  Burr.  227. 


SECT.  III.]  payable  out  of  Personal  Estate.  387 

sions,  when  it  is  declared,  or  appears  from  a  sound  rational  con- 
struction of  their  wills.  It  may,  therefore,  be  useful  to  consider 
some  of  the  cases,  when  such  words  and  expressions  weredeprived 
of  their  natural  import,  and  which  will  be  attempted  under  the  fol- 
lowing title  : 

SECOND.  When  legacies  will  vest  at  the  testator's  death,  not- 
withstanding they  be  given  in  words  purporting  to  constitute  the 
gifts  and  times  of  payment  of  them,  one  and  the  same. 

In  the  construction  of  wills  the  intention  of  testators  is  the  great 
object  to  be  ascertained,  and,  when  discovered,  it  will  always  pre- 
vail, if  agreeable  to  the  rules  of  law.  Hence,  although  the  terms 
of  bequeathing  a  legacy  be  such,  as,  if  unexplained  by  other  parts 
of  the  will,  would  prevent  it  from  immediately  vesting  ;  yet,  if  they 
be  coupled  with  circumstances  showing  that  a  condition  precedent 
to  its  vesting  was  not  intended,  but  that  the  words  importing  a  con- 
dition were  only  meant  to  denote  the  period  when  the  legacy  was 
to  be  received  or  enjoyed,  the  sense  is  put  upon  the  words  which 
the  will  requires  (z}.  Consequently  the  words  if,  when,  &c.  may 
or  may  not  be  conditional  according  to  circumstances.  Instances 
of  their  conditional  import  have  been  given,  and  examples  of  their 
not  being  so  considered  now  remain  to  be  produced.  There  are 
some  general  rules  which  may  be  guides  in  these  cases,  one  of 
which  is, — 

1.  When  the  period  of  payment  or  enjoyment  of  the  fund  is  de- 
ferred until  the  legatee  attain  twenty-one,  and  the  first  gift  of  it  is 
made  to  him  when  or  after  he  shall  attain  that  age,  but  in  the  mean- 
time the  property  is  given  to  a  parent,  guardian  or  trustee,  for  the 
legatee's  benefit ;  the  words  "  when"  or  "  after,"  which  import  a 
condition  precedent  to  the  vesting  of  the  legacy,  will  not  be  per- 
mitted to  produce  that  effect;  on  the  contrary,  they  will  be  con- 
sidered as  merely  descriptive  of  the  time  when  the  legatee  was  to 
be  let  into  the  possession  of  the  fund,  and  then  according  to  the 
rule  mentioned  in  the  first  section,  the  interest  in  the  legacy  will 
vest  at  the  death  of  the  testator ;  and,  if  the  legatee  die  before 
twenty-one,  his  personal  representative  will  be  entitled  to  the 
money.  The  principle  is  this  ;  since  the  whole  interest  in  the  fund 
is  given  in  one  way  or  the  other  to  and  for  the  benefit  of  the  legatee, 
it  could  not  be  the  testator's  intention  to  make  it  contingent 
whether  the  legatee  should  have  the  absolute  inteftest.  That  inte- 
rest is  split  into  two  parts ;  till  one  period  it  is  given  to  the  parent, 
guardian,  or  trustee  ;  and  at  the  other  it  is  given  to  the  legatee. 
The  reason  why  it  was  not  given  sooner  to  the  legatee,  was  from 
regard  to  his  convenience,  as  it  could  not  be  conveniently  given  to 
a  person  under  age.  Hence  it  is  apparent  that  the  conditional 
words  were  merely  annexed  to  the  payment,  not  to  the  gift  of  the 
legacy  (a).  The  following  authorities  are  produced  in  support  of 
these  remarks,  commencing  with  those  cases  where  the  interest  of 
the  legacies  was  given  for  the  maintenance  of  the  legatees  until 
the  money  became  payable. 

It  is  settled  that,  although  there  be  no  gift  of  a  legacy  previous 
to  the  period  appointed  for  its  payment,  yet,  if  the  intermediate  in- 

(z)  See  Chap.  XIII.  sect.  1.  (a)  9  Ves.  230. 


388  Of  vested  Legacies  [Cn.  X. 

tei'est  be  given  to  the  legatee,  or  be  directed  to  be  applied  for  his 
maintenance  or  education,  such  circumstances  will  prima  facie  have 
the  I'lfect  to  vest  the  legacy  ;  and  for  this  reason  ;  as  no  interest  could 
accrue  to  the  legatee  before  the  time  appointed  for  payment  of  the 
principal,  the  testator's  intention  in  giving  such  interest  must  be 
presumed  to  have  been,  to  give  the  capital  in  all  events  to  the  le- 
gatee, and  to  have  allowed  him  intermediate  interest  as  a  recom- 
pence  for  the  forbearance  of  the  capital(ft). 

Thus  in  Fotiereau  v.  Fonereau,(c)  the  bequest  was  of  1000Z.  to 
Claudius  Fonereau,  when  lie  should  have  attained  the  age  of  twenty- 
five.  The  testator  empowered  his  -executors  and  trustees  to  place" 
the  money  at  interest,  which  he  directed  to  be  applied  at  their  dis- 
cretion for  the  education  of  Claudius,  as  also  part  of  the  principal  to 
put  him  apprentice,  and  the  remainder  to  be  paid  to  him  when  he 
should  have  attained  the  age  of  twenty-five,  and  not  before.  Clau- 
dius having  died  under  that  age,  the  question  was,  whether  his 
personal  representative  was  entitled  to  the  legacy  ?  which  depend- 
ed upon  this ;  whether  he  took  a  vested  interest.  And  Lord  Hard- 
wicke  decided  in'  the  affirmative. 

Had  the  disposition  in  the  last  case  stopped  at  the  conclusion  of 
the  first  sentence,  doubtless,  Lord  Hardwicke  would  have  deter- 
mined against  the  vesting  of  the  legacy.  His  Lordship,  however, 
rested  his  decision  upon  the  subsequent  words  controlling  the  word 
when,  as  it  \vould  have  operated  standing  alone.  For  when  the 
testator  proceeded  to  give  interest  for  the  education  of  the  legatee, 
and  a  power  to  the  trustees  to  apply  any  part  of  the  principal  as  an 
apprentice  fee  with  the  legatee,  and  gave  the  remainder  of  the 
capital  to  him  when  he  should  attain  the  age  of  twenty-five,  it  was 
clear  upon  the  wrhole  will,  that  nothing  was,  or  was  intended  to  be, 
postponed  by  the  conditional  term  when,  except  the  payment  of  the 
money(d). 

So  in  Hoath  v.  Hoath(e),  the  testator  gave  1001.  to  Thomas 
Hoath  at  his  age  of  twenty-one,  and  directed  the  intermediate  in- 
terest to  be  paid  to  his  mother  for  his  maintenance.  Thomas  hav- 
ing died  under  twenty-one,  the  question  was,  whether  this  was  a 
vested  legacy  *?  And  Lord  Thurlow  determined  in  the  affirmative, 
in  consequence  of  interest  having  been  given  for  the  benefit  of 
Thomas,  before  his  legacy  became  payable. 

This  principle^'was  acknowledged  by  Lord  Kenyan,  M.  R.  in 
Walcott  v.  Hall(f).  In  that  case,  John  Pearce,  bequeathed  to  his 
god-son,  the  plaintiff,  Thomas  JValcott,  501.  to  be  paid  at  twenty- 
one  or  marriage,  and  directed  the  money  to  be  placed  at  interest 
in  the  name  of  his  executor,  who  was  to  apply  such  interest  towards 
the  maintenance  and  education  of  Thomas ;  but  if  Thomas  died 
before  twenty-one  or  marriage,  the  testator  gave  the  legacy  to  his 
own  executor,  in  trust  for  the  poor  of  Stoke;  and  after  disposing 
of  his  residuary  estate,  he  appointed  the  defendant  Hall  executor, 
who  having  distributed  the  residue  and  retained  the  legacy  of  50/. 
became  a  bankrupt,  and  obtained  his  certificate.  Thomas  Walcott, 

(6)  2  Ventr.  342.  Stafiletonv.  C/ieales,  Pre.  Ch.  318.  Sounders  \.  Earle,  2 
Chan  Rep.  190.  (c)  3  Atk.  645.  (d)  6  Ves.  245.  (e)  2  Bro.  C.  C.  4. 

(/)  Ibid.  305.  and  see  2  Meriv.  386. 


SECT.  III.]          payable  out  of  Personal  Estate.  389 

the  legatee,  attained  the  age  of  twenty-one  ;  and  it  was  one  of  the 
questions,  whether  he  had  a  claim  upon  the  executor  for  the  50Z.  9 
which  depended  upon  this,  whether  Thomas  took  a  vested  interest 
before  twenty-one,  that  might  have  been  proved  under  the  commis- 
sion ;  for  if  he  had,  then  his  right  was  barred  by  the  certificate. 
And  the  Master  of  the  Rolls  was  of  opinion,  that  the  legacy  vested 
in  Thomas  previously  to  his  attaining  twenty-one,  which  might 
have  been  proved  under  the  commission,  and  was  therefore  barred 
by  the  certificate.  And  his  Lordship  remarked,  that  the  gift  of  in- 
terest always  vested  personal  legacies. 

In  conformity  with  these  authorities,  Sir  W.  Grant  decided  the 
case  of  Lane  v.  Goudge(g),  in  which  the  testatrix  being  possessed 
of  20251  three  per  cent,  consols,  bequeathed  to  her  sister  Naomi 
Ivy,  301.  yearly  for  life,  to  be  paid  out  of  the  three  per  cent,  consols, 
and  she  gave  all  the  interest  that  remained,  after  payment  of  the 
30i.  to  James  Lane,  for  his  second  daughter  to  be  born,  (she  being 
christened  Zipporah  Ivy]  for  her  education,  until  she  arrived  at 
twenty-one  ;  and  after  she  attained  that  age  the  testatrix  bequeath- 
ed to  her  such  interest  absolutely.  The  testatrix  also  gave  the  an- 
nuity of  30Z.  after  the  death  of  Naomi  Ivy,  to  James  Lane,  until 
his  same  second  daughter  attained  twenty-one,  and  after  she  arrived 
at  that  age,  the  testatrix  bequeathed  to  her  the  annuity  for  ever. 
James  had  a  second  daughter,  whom  he  christened  Zipporah  Ivy, 
and  she  died  intestate,  under  the  age  of  twenty-one.  Her  father 
nevertheless  claimed  a  transfer  of  the  bank  annuities,  on  the  ground 
that  his  daugeter  took  a  vested  interest  in  them,  to  which  he  was 
entitled  as  her  legal  personal  representative,  and  so  Sir  W,  Grant 
determined. 

With  respect  to  the  first  bequest,  there  could  be  little  doubt  of 
Zipporah  having  taken  a  vested  interest  in  it,  since  the  dividends 
to  accrue  during  her  minority  were  given  to  her  father  as  a  trustee 
for  her,  and  for  her  education,  which  showed  that  the  legacy  was 
meant  to  pass  to  her  instanter,  with  a  postponement  of  tire  posses- 
sion until  she  attained  the  age  of  twenty-one.  And  in  regard  to 
the  second  bequest,  although  it  was  not  expressed  to  be  given  to 
her  father  for  her,  or  for  her  education,  as  in  the  first,  an  omission 
founded  probably  in  accident ;  yet  supposing  that  omission  incapa- 
ble of  being  supplied,  and  the  father  therefore  entitled  to  the  an- 
nual dividends  from  the  death  of  Naomi  during  his  daughter  Zip- 
porah's  minority  ;  still  as  Zipporah  would  take  a  vested  interest  in 
remainder  in  those  dividends,  to  commence  in  possession,  from  her 
age  of  twenty-one,  her  father,  in  his  own  right,  and  as  her  personal 
representative,  became  absolutely  entitled  to  the  whole  of  the  bank 
annuities  at  her  death  (Naomi  being  then  dead,)  and  consequently 
to  a  transfer  of  them  for  his  own  use  and  benefit. 

It  is  to  be  remarked,  that  where  the  interest  of  the  fund  is  so  given 
as  to  vest  the  legacy  before  the  time  of  payment,  that  construction 
will  not  be  prevented  by  the  insertion  of  dubious  expressions. 

Thus  in  Dodson  v.  Hay,(h)  Mr.  Wilmot  bequeathed  to  the  chil- 
dren of  his  sister  the  whole  of  his  real  and  personal  estates,  directing 
that  all  the  children  should  be  educated  with  the  yearly  interest  c/f 

(#)  9  Ves.  225.  (A)  3  Bro.C.  C.  404.  409.     Ed.  by  Belt. 

VOL.  i.  3D 


390  Of  vested  Legacies  [Cn.  X. 

whatever  portion  of  his  estate  might  fall  to  each  respective  child's 
lot  or  share  ;  and  that  such  portion  should  not  be  otherwise  claimed 
or  inherited,  directly  or  indirectly,  until  the  said  children  arrived  at 
the  age  of  twenty-two  years,  whether  married  or  single.  One  of  the 
children,  a  daughter,  died  before  attaining  that  age,  and  her  share 
was  claimed  by  her  administrator,  upon  the  ground  that  she  took  a 
vested  interest  in  it  at  the  death  of  the  testator,  and  the  Court  deter- 
mined in  favour  of  the  claim ;  the  Master  of  the  Rolls  observing, 
that  by  the  gift  of  interest,  the  shares  being  prima  facie  vested,  that 
interpretation  could  not  be  altered  by  words  of  vague  import ;  and 
that  the  enjoyment,  not  the  gift,  of  the  fund  was  postponed  until  the 
legatees  attained  their  ages  of  twenty-two  years. 

Such  is  the  established  rule  in  favour  of  vesting,  founded  upon  the 
intention  of  testators,  presumed  from  the  gift  of  intermediate  inte- 
rest for  the  support  of  the  legatees  previous  to  the  arrival  of  the  times 
appointed  for  receipt  of  the  capital.  But  if  the  gift  of  maintenance 
be  not  co-extensive  with  the  whole  amount  of  the  interest ;  or  if  it  be 
made  out  of  another  fund,  in  neither  case  will  the  legacies  vest  prior 
to  the  arrival  of  the  periods  at  which  they  are  made  payable ;  for 
such  provisions  afford  no  presumption  that  the  testators  intended 
the  legacies  to  vest  before  they  became  due  ;(i)  -and  then  the  gifts 
and  the  payments  of  the  legacies  being  one  and  the  same,  if  the  le- 
gatees die  before  that  period,  their  personal  representatives  cannot 
make  a  title  to  the  funds. 

We  shall  next  proceed  to  the  authorities  which  prove,  that  where 
the  interest  of  legacies  before  their  times  of  payment  is  not  express- 
ed to  be  applicable  for  the  support  of  the  legatees,  but  it,  or  the 
funds,  are  given  to  parents,  guardians,  or  trustees  for  the  benefit  of 
the  legatees  generally,  such  bequests  will  vest  in  them  at  the  death 
of  the  testators,  notwithstanding  the  gifts  and  times  of  payment  of 
the  legacies  are  the  same,  and  which,  without  such  a  declaration, 
would  have  made  the  bequests  contingent  previously  to  the  arrival 
of  the  periods  when  they  were  appointed  to  be  paid. 

Thus  in  Hanson  v.  Graham,(k)  the  testator  bequeathed  to  his 
three  grandchildren  500Z.  a  piece  four  per  cent,  consols,  when  they 
should  respectively  attain  the  ages  of  twenty-one,  or  be  married, 
provided  the  marriages  were  had-  with  the  consent  of  his  executors 
and  trustees  ;  and  he  directed  the  interest  of  the  annuities  to  be  laid 
out  at  the  discretion  of  his  Executors  and  trustees  as  they  should 
think  proper,  for  the  benefit  of  the  legatees  until  they  attained  twen- 
ty-one or  marriage,  and  for  no  other  use,  intent,  or  purpose.  The 
testator  then  gave  his  residuary  personal  estate  to  his  son  Isaac  Gra- 
ham, whom  he  appointed  executor.  One  of  the  grandchildren  died 
intestate  at  the  age  of  nine  years,  after  surviving  the  testator,  and 
the  question  was,  whether  the  plaintiffs,  its  next  of  kin,  or  the  resi- 
duary legatee  of  the  testator,  were  entitled  to  the  legacy ;  which  de- 
pended upon  this  circumstance,  whether  the  deceased  grandchild  took 
a  vested  interest  in  it  ?  And  Sir  W.  Grant  determined  in  favour  of  the 
plaintiffs,  the  next  of  kin,  upon  the  principle,  that  the  gift  of  the 
whole  interest  for  the  benefit  of  the  legatees,  which  gave  them  the 
absolute  property  in  it,  as  it  became  due,  also  gave  them  immediate 

(f)  See  3  Bro.  C.  C.  416.     6  Ves.  249.     2  Meriv,  386.        (£)  6  Ves.  239.  249. 


SECT.  III.]          pay  able  out  of  Personal  Estate.  391 

vested  interests  in  the  legacies ;  and  consequently,  that  the  next  of 
kin  of  the  deceased  grandchild  were  entitled  to  the  500Z.  bequeath- 
ed to  it. 

In  Branstrom  v.  Wilkinson,(fy  the  testator  gave  to  the  two  chil- 
dren- of  his  niece,  one  dock-share,  &c.  when  they  should  attain  the 
ages  of  twenty-one,  in  equal  shares,  and  appointed  their  father  trus- 
tee for  them  during  minority.  The  question  was,  whether  the  lega- 
tees took  vested  interests  before  twenty-one  *?  And  Sir  W.  Grant 
decided  in  the  affirmative,  upon  the  ground  that  the  testator  in  tip- 
pointing  a  trustee  for  them  during  minority,  clearly  showed  his  inten- 
tion to  postpone  the  possession,  and  not  the  vesting  of  the  legacies. 

Upon  similar  reasoning,  the  case  of  Love  v.  L 'Estrange  may  be 
supported,  notwithstanding  Lord  Rosslyn  expressed  his  inability  to 
account  for  the  principle  of  the  decision,fm)  unless  it  were  to  be  re- 
ferred to  the  circumstance  of  being  a  residue;  as  the  words  were 
annexed  to  the  gift. 

In  that  case,(w)  the  testator  vested  in  trustees,  who  were  his  ex- 
ecutors, his  residuary  estate,  in  trust  to  sell,  dispose  of,  and  improve 
"until  Walter  Nash  should  attain  his  age  of  twenty-four  years." 
He  then  expressed  a  wish,  that  Walter  should  be  wholly  employed 
in  his  trade,  either  as  an  apprentice  or  a  journeymen,  until  his  said 
age,  and  directed  that  he  should  be  paid  an  annuity  of  101.  out  of 
the  residue  from  his  age  of  twenty-one  until  he  attained  twenty-four, 
and  from  thenceforth  in  trust  (as  to  the  residue)  for  him  the  said 
Walter  Nash.  Walter  died  under  the  age  of  twenty-four;  and  the 
question  was,  whether  he  took  a  vested  interest  in  the  fund  which 
was  transmissible  to  his  personal  representatives  9  Lord  King  de- 
termined in  the  affirmative,  from  whose  decree  the  testator's  next  of 
kin  appealed  to  the  House  of  Lords,  which  confirmed  the  decision. 

Although  the  last  was  a  case  not  of  simple  unqualified  gift  to  the 
legatee,  yet  there  were  many  circumstances  to  show  that  Walter 
Nash  was  intended  to  have  the  benefit  absolutely ;  and  that  the  en- 
joyment of  the  property  was  alone  postponed  until  he  attained  the 
age  of  twenty-four.  The  reason  for  deferring  payment  is  obvious. 
Walter  Nash  was  a  minor  at  the  date  of  the  will,  and  the  testator 
appeared  to  be  anxious  to  counteract  the  mischief  with  which  pos- 
session of  his  fortune  might  be  attended  to  the  legatee,  if  he  were 
permitted  to  receive  it  at  an  earlier  period  than  the  age  of  twenty-four; 
as  it  might  induce  him  to  abandon  the  trade  which  the  testator  was 
desirous  he  should  qualify  himself  for,  and  carry  on.  That  was  the 
motive  for  postponing  the  enjoyment  of  the  bequest;  and  in  addition, 
the  testator,  in  the  mean  time,  gave  the  fund,  intended  for  Walter, 
to  trustees,  for  his  benefit,  to  improve  for  him  and  to  make  him  an 
allowance  in  the  interim^  circumstances,  proving  under  the  authority 
of  the  cases  before  stated,  that  the  fund  w.as  intended  to  be  imme- 
diately given  to  the  legatee,  with  a  delay  of  the  possession  only  until 
he  attained  the  age  of  twenty-four  years. 

In  all  the  instances  which  have  been  produced,  the  corpus  of  the 
property  was  immediately  given,  and  the  interest  or  fund  directed 

(/)  7  Ves.  421.  (ni)  1  Bro.  C.  C.  300. 

(«)  Bro.  Par).  Ca.  59.8vo.  ed.  and  see  Doe  v.  Lea,  3  Term.  Rep.  41.  and  Good- 
title  v.  Whitby,  1  Burri  228. 


392  Of  vested  Legacies  [Cn.  X. 

to  be  applied  or  managed  for  the  benefit  of  the  legatee.  If,  however, 
the  interest  or  dividends  alone  be  the  subject  of  bequest  until  a  par- 
ticular time,  and  the  principal  is  not  sooner  taken  out  of  the  residue, 
but  directed  for  the  first  time  to  be  taken  out  of  it,  and  paid  or  trans- 
ferred to  the  legatee  at  the  end  of  that  period,  the  intermediate  gift 
of  the  interest  or  dividends  will  not  vest  the  capital;  because  the 
gift  and  payment  of  it  are  one  and  the  same,  and  it  was  the  intention 
of  the  testator  to  make  the  gifts  of  the  interest  and  the  capital  sepa- 
rate and  distinct,  so  as  to  constitute  the  time  appointed  for  payment 
of  the  principal,  the  very  essence  of  the  gift  of  it. 

Batsford  v.  Kebbell,(o)  is  a  case  of  this  description.  There  the 
testatrix  gave  to  Robert  Endly  the  dividends  which  should  become 
due  after  her  death  upon  500Z.  three  per  cent,  bank  annuities  until 
he  should  arrive  at  the  full  age  of  thirty-two  years,  at  which  time 
she  directed  her  executors  to  transfer  to  him  the  principal  sum,  for 
his  own  use.  Robert  died  under  that  age  ;  and  the  question  was, 
whether  his  personal  representatives  or  the  residuary  legatee  of  the 
testatrix  were  entitled  to  the  legacy1?  which  depended  upon  the 
circumstance,  whether  Robert  took  a  vested  interest  in  it  previous 
to  the  age  of  thirty-two.  It  was  .insisted  for  the  residuary  legatee, 
that  there  was  no  gift  of  the  principal  to  Robert  but  in  the  direction 
to  transfer  at  a  time  which  never  arrived ;  and  that  the  difference  was 
between  a  gift  of  the  corpus,  taking  it  out  of  the  residue,  and  a  gift 
of  the  dividends  only,  the  capital  being  to  be  taken  out  at  a  future 
period.  And  Lord  Rosslyn  concurred  in  this  statement,  and  de- 
creed in  favour  of  the  residuary  legatee ;  remarking,  that  he  had 
looked  into  the  cases,  from  which  it  appeared  that  dividends  were 
always  a  distinct  subject  of  legacy  ;  that,  in  this  instance,  there  was 
no  gift  but  in  the  direction  for  payment;  a  direction  that  only  attached 
upon  a  person  of  the  age  of  thirty-two,  which  necessarily  excluded 
Robert,  as  he  never  attained  that  age.  And  his  Lordship  said,  that 
in  all  other  cases  of  vesting,  the  thing  was  given,  and  the  profit  out 
of  it  was  given. 

2.  It  may,  however,  happen  that  the  intermediate  interest  is  not 
bequeathed  to  or  for  the  maintenance  or  benefit  of  the  legatee 
during  minority,  or  until  the  fund  is  directed  to  be  paid  to  him; 
but  such  interest  may  be  bequeathed  to  another  person  beneficially 
till  the  legatee  of  the  capital  arrive  at  a  particular  age,  and,  when 
he  attains  to  it,  the  fund  may  be  directed  to  be  transferred  to  him, 
or  the  fund  or  its  intermediate  interest  may  be  given  to  executors  or 
trustees  to  answer  particular  purposes,  as  to  pay  debts,  &c.  with  a 
direction  to  pay  over  the  property  to  the  legatee  after  satisfaction  of 
those  demands ;  or  the  intermediate  interest  may  be  given  to  an- 
other person  for  life,  as  when  the  fund  is  bequeathed  to  or  in  trust 
for  Ji,  for  life,  and  after  his  death  to  B.  In  all  those  cases,  the 
person  to  whom  the  absolute  property  is  limited,  will  take  an  im- 
mediate vested  interest  in  the  subject,  since  such  bequests  are  in 
the  nature  of  remainders;  the  rule  as  to  which  is,  that  the  interests 
of  the  first  and  subsequent  takers  vest  together.  It  is  clear  that  the 
testator  intended  to  give  immediately  the  capital  to  the  person  in 

(o)  3Ves.  363.  referred  to  3  Ves.  367.  5  Ves.' 5 14.  3  Meriv.  342.  and  see 
Sambury  v.  Readt  12  V«s.  75.  See  also  Ford  v.  Rav>lmst  1  Sim.  &  Stu.  328. 


SECT.  III.]          payable  out  of  Personal  Estate.  393 

remainder,  with  a  postponement  of  the  enjoyment  only  until  he 
arrived  at  a  particular  age,  or  until  the  particular  purposes  were 
answered,  or  so  long  as  the  tenant  for  life  continued  to  live.  Upon 
these  subjects,  it  is  indifferent  whether  the  devise  be  of  real  or  per- 
sonal estate;  provided,  when  the  subject  is  personal  estate,  the 
whole  property  in  it  be  given  with  a  particular  interest  out  of  it; 
for  it  will  be  afterwards  shown  that  if  the  interest  of  personalty  be 
alone  given  to  a  person  for  life,  and  the  context  of  the  will  show 
that  the  capital  was  not  intended  to  be  disposed  of  till  after  his 
death,  the  interest  in  the  capital  will  be  contingent  during  the  life 
of  such  person;  because  there  is  no  gift  of  the  principal  previously 
to  the  direction  for  its  payment,  and  the  gift  and  time  of  payment 
are  one  and  the  same.  We  shall  proceed  to  consider, (p] — 

FIRST,  instances  of  legatees  in  remainder  taking  vested  interests 
in  the  capital  at  the  testator's  death,  although  the  interest  of  the 
fund  accruing  between  that  period  and  the  arrival  of  the  legatees 
at  particular  ages,  when  the  capital  is  given  to  them,  is  bequeathed 
to  another  person  beneficially. 

.In  Lane  v.  Goudge,(q]  before  stated, (r)  we  have  seen  that  the 
annuity  of  30Z.  bequeathed  to  Naomi  Ivy  for  life,  remainder  to 
James  Lane,  until  his  second  daughter  attained  twenty-one,  and 
then  to  her  absolutely,  vested  in  the  daughter  at  the  death  of  the 
testator. 

So  in  Taylor  v.  Biddall,(s)  the  devise  was  to  Elizabeth  Smith  for 
so  long  time  and  until  her  son  Benjamin  attained  his  full  age  of 
twenty-one;  and  after  he  should  have  arrived  at  that  age,  then  to 
him  absolutely.  The  Court  held  that  Elizabeth  had  a  term  for 
years  in  the  estate  until  Benjamin  was  twenty-one,  and  that  Benja- 
min took  a  vested  remainder  in  fee. 

And  in  Manfield  v.  Dugard,(t)  the  testator  devised  lands  to  his 
wife  till  his  son  attained  twenty-one ;  and  when  his  son  arrived  at 
that  age,  then  to  him  in  fee.  The  son  died  under  twenty-one. 
And  the  Lord  Chancellor  decided  that  the  son  took  a  vested  re- 
mainder in  fee,  expectant  upon  the  term  for  years  in  his  mother,  a 
term  which  expired  at  his  death. 

SECOND.  Where  the  property  will  vest  in  the  legatee  in  re- 
mainder at  the  testator's  death,  so  as  to  be  transmissible  to  his  per- 
sonal representative,  although  the  interest  of  the  fund,  or  the  fiind 
itself,  be  given  to  executors  or  trustees  to  answer  particular  pur- 
posesj  as  to  pay  debts,  &c.  and  the  capital  is  not  bequeathed  to  the 
legatee  until  after  satisfaction  of  those  demands. 

In  Boraston's  case,(w)  the  devise  was  to  a  man  and  his  wife  for 
eight  years,  and  after  that  term  the  lands  were  to  remain  to  the  ex- 
ecutors of  the  devisor,  until  such  time  as  Hugh  Boraston  should 
accomplish  his  full  age  of  twenty-one;  the  mesne  profits  to  be  em- 
ployed by  the  executors  towards  the  performance  of  the  testator's 
will;  and  when  the  legatee  should  attain  twenty-one,  then  that  he 
should  enjoy  the  estate  to  him  and  his  heirs.  Hugh  Boraston  died 
under  twenty-one,  and  the  Court  of  King's  Bench  determined,  that 
the  remainder  vested  in  him  at  the  death  of  the  devisor,  with  a  post- 

(fi)  See  the  last  case.     (?)  9  Ves.  226.  231.     (r)  Ante,  p.  389.     (s)  2  Mod.  289. 
(0  1  Eq.  Ca.  Abr.  195.  pi.  4.  (u)  3  Rep,  19.  21,     1  New  Rep.  C.  P.  317. 


394  Of  vested  Legacies  [Cn.  X. 

ponement  of  the  possession  until  Hugh  completed  the  age  of 
twenty-one. 

THIRD.  Where  a  legacy  in  remainder  after  an  interest  for  life 
will  vest  at  the  testator's  death,  so  as-  to  be  transmissible  to  the  per- 
sonal representative  of  the  legatee,  although  he  die  before  the 
tenant  for  life. 

When  the  absolute  property  in  a  fund  is  bequeathed  in  fractional 
interests  in  succession,  at  periods  which  must  arrive:  as  to,  or  in 
trust  for  A.  for  life,  and  after  his  death  to  B. ;  the  interests  of  the 
first  and  subsequent  takers  will  vest  together,  and  notwithstanding 
B.  may  die  before  t/2.,  his  personal  representatives  will  be  entitled 
to  receive  the  legacy  upon ' the  death  of  Jl.(x)  This  doctrine  is 
established  by  a  variety  of  ctises. 

In  Monkhouse  v.  Holme,(y)  the  testator  gave  800Z.  to  trustees  to 
pay  to  his  wife  the  interest  for  life,  and  from  and  after  her  death  he 
disposed  of  the  said  sum  of  SOOZ.  in  manner  following,  &c.  Then 
the  testator,  after  several  intermediate  devises  and  bequests,  gave 
the  legacy,  upon  which  the  question  arose  :  "  I  also  give  to  Jonathan 
Monkhouse,  son  of  my  brother  George,  the  sum  of  100Z."  Jonathan, 
having  survived  the  testator,  died  before  the  widow ;  and  the  ques- 
tion was,  whether  he  took  a  vested  interest  in  the  legacy,  so  as  to 
transmit  it  to  his  personal  representatives  9  And  Lord  Rosslyn  de- 
cided in  the  affirmative ;  his  Lordship  remarking  that  the  800Z.  was 
given  to  the  trustees  to  pay  the  interest  to  the  wife  for  life,  and  then 
in  parts  and  shares,  which  showed  that  the  testator  intended  to  give 
vested  interests  to  the  several  legatees. 

So  in  the  Attorney  General  v.  Crispin, (z)  the  testatrix,  after  giv- 
ing several  annuities,  bequeathed  after  the  death  of  the  annuitants, 
501.  to  each  of  the  children  of  D.  Riviere.  D.  Riviere  then  had 
seven  children,  six  of  whom  died  before  the  surviving  annuitant ; 
and  one  of  the  questions  was,  whether  any  interest  vested  in  the  six 
children,  as  they  did  not  survive,  the  last  annuitant  9  And  the  Lord 
Chancellor  determined  that  they  took  vested  interests. 

The  last  case  was  followed  by  Benyon  v.  Maddison,(a)  in  which 
Mr.  Lynde  bequeathed  the  whole  of  his  estate  to  the  defendant,  to 
pay  the  interest  to  his  mother,  Hester  Lynde  for  life ;  and  after  her 
death,  he  then  gave  to  five  persons  500Z.  each,  three  per  cent,  annui- 
ties, and  to  J.  Benyon  and  Mary  his  sister,  100Z.  each  like  annuities. 
J.  Benyon  survived  the  testator,  but  died  during  the  life  of  Hester 
Lynde ;  and  the  question  was,  whether  J.  Benyon  took  a  vested  in- 
terest in  the  100Z.  three  per  cent,  annuities,  which  entitled  his  per- 
sonal representative  to  call  for  the  stock  after  the  death  of  Hester? 
The  Master  of  the  Rolls  was  of  opinion,  that  /.  Benyon  had  a  vested 
interest  in  the  annuities,  and  that  his  personal  representative  was 
entitled  to  them. 

The  next  case  was  Scurfieldv.  Howes,(b]  where  the  testatrix  being 
entitled  to  a  mortgage  debt  of  500Z.  directed  her  executors  to  permit 
Susanna,  wife  of  Michel  Homer,  to  take  the  interest  to  her  separate 
use  for  life ;  and  if  the  mortgage  should  be  discharged,  she  directed 

(x)  9  Ves.  507.  („)  i  Bro.  C.  C.  298. 

(z)  Ibid.  386  and  see  Exel  v.  Wallace,  2  Ves.  sen.  118. 

(a)  2  Bro.  C.  C.  75.  ed.  by  Belt.  (6)  3  Bro.  C.  C.  90. 


SECT.  III.]  payable  out  of  Personal  Estate.  395 

the  money  to  be  invested  in  government  securities  to  the  same  use. 
And  after  the  death  of  Susanna,  the  testatrix  gave  the  principal  sum 
to  the  son  and  daughter  of  Susanna,  by  a  former  husband,  equally, 
but  if  either  of  them  died  before  her  mother,  the  whole  was  to  go  to 
the  survivor.  Lydia,  the  daughter  of  Susanna,  died  in  the  lifetime 
of  her  mother  and  brother.  Her  brother  assigned  the  500Z.  to  the 
plaintiff,  and  died  intestate  before  his  mother.  The  plaintiff  was  also 
his  administrator.  The  mother  being  dead,  the  question  was,  whether 
the  plaintiff  was  entitled  to.  the  whole  50G£.  as  assignee  or  adminis- 
trator of  the  brother  ?  And  the  Master  of  the  Rolls  was  of  opinion, 
that  the  plaintiff  was  entitled  to  it  in  the  latter  character. 

The  last  decision  appears  to  have  been  founded  upon  the  follow- 
ing reasons:  1st,  that -the  son  and  daughter  took  vested  interests  in 
remainder,  in  the  legacy  at  the  death  of  the  testator,  liable  to  be  di- 
vested as  to  a  moiety  in  favour  of  the  other  legatee  upon  the  decease 
of  the  one  first  dying.  And  2dly,  that  as  the. brother  survived  his 
sister,  her  share  immediately  and  absolutely  vested  in  him  at  her 
death,  the  will  not  requiring  the  surviving  legatee  to  be  in  esse  at 
the  death  of  the  mother.  Hence,  the  brother  was  entitled  to  a 
moiety  of  the  fund  in  his  own  right,  and  to  the  other  under  the  limi- 
tation over  in.  the  will,  which  gave  a  right  to  his  administrator  to  re- 
ceive the  whole,  after  the  death  of  the  tenant  for  life. 

In  Taylor  v.  Longford,(c)  the  testator  directed  the  interest  of  his 
residuary  estate  to  be.  paid  to  his  two  sisters  Hannah  and  Mice  in 
equal  shares  during  their  lives  ;  "  and  after  their  decease,  the  princi- 
pal to  be  paid  to  their,  children  equally  ;  but  which  ever  sister  died 
before  the  other,  the  share  which  was  so  paid  to  her,  should  be  paid 
to  her  children  in  equal  proportions ;  but  if  such  sister  so  dying, 
should  leave  no  children,  then  the  interest  to  be  paid  to  the  survivor 
for  life  as  aforesaid."  Alice  died  without  leaving  children.  Hannah 
had  two  children  at  the  testator's  death,  and  other  two  afterwards, 
but  the  plaintiff  was  the  only  child  living  at  her  death,  and  as  such 
claimed  the  whole  residue  under  the  idea  that  the  gift  to  the  children 
was  contingent  until  the  death  of  the  surviving  sister.  In  opposition 
to  which  claim,  it  was  contended  for  the  assignees  of  two  of  the  other 
children,  that  the  first  words  completely  disposed  of  the  property 
after  the  death  of  the  two  sisters,  which  clearly  gave  it  to  all  the 
children,  and  that  there  was  nothing  to  alter  the  effect  of  the  gift  in 
the  subsequent  expressions,  which  were  only  applicable  to  the  life 
interests  of  the  two  sisters,  and  did  not  touch  the  principal.  Of  this 
opinibn  was  the  Master  of  the  Rolls,  who  declared  that  the  property 
vested  in  all  the  children. 

The  next  case  is,  Wadley  v.  North.(d)  There  Thomas  Weston 
devised  and  bequeathed  his  real  and  personal  estates  to  a  trustee,  to 
pay  the  annual  produce  to  his  mother  Jinn  Weston,  and  his  sister 
Jinn  Wadley,  during  their  lives  (the  moiety  of  the  latter  being  given 
to  her  separate  use  ;)  and  from  and  after  th6  death  of  his  mother  and 
sister,  and  the  survivor  of  them,  to  apply  the  same  for  the  benefit  of 
all  the  children  of  his  sister  who  should  be  living  at  her  death,  in 
equal  shares,  "  each  receiving  his  or  her'  respective  share  of  the 
principal  upon  his  or  her  attaining  the  age  of  twenty-one  years ;  and 

(c)  3  Ves.  119.  (rf)  3  Ves.  364. 


396  Of  vested  Legacies  [Cn.  X. 

if  one  child  should  be  so  surviving,  in  trust  to  pay  the  whole  to  such 
child  upon  his  or  her  attaining  the  age  of  twenty-one  years  as  afore- 
said" Ann  Weston  and  Ann  Wadley  having  survived  the  testator, 
died ;  the  former  in  the  year  1793,  and  the  latter  in  the  year  1790. 
Ann  Wadley  had  four  children  living  at  the  testator's  death,  two  of 
whom  died  after  surviving  their  mother,  in  the  lifetime  of  Ann  Wes-  ' 
ton,  and  under  twenty-one.  One  of  the  questions  was,  whether  as 
the  two  children  died  under  age,  and  before  Ann  Weston,  the  tenant 
for  life,  they  took  vested  interests  in  the  property  transmissible  to 
their  personal  representatives  *?  And  the  Master  of  the  Rolls  deci- 
ded in  the  affirmative,  declaring  upon  the  true  construction  of  the 
will,  that  the  gift  to  a  surviving  child  merely  referred  to  the  death 
of  the  mother ;  so  that  the  two  children  having  survived  her,  took 
vested  interests  in  their  shares,  although  they  died  under  twenty-one, 
and  in  the  lifetime  of 'the  tenant  for  life. 

Lastly,  in  Blamire  v.  Geldart,(e]  the  testator  gave  to  George  Prin- 
gle,  200Z.  three  per  cent,  consols  at  his  wife's  decease,  and  appointed 
her,  Pringle,  and  another  person  executors,  to  manage  the  property, 
and  fulfil  the  intentions  of  his  will.  Pringle,  the  legatee  died  be- 
fore the  wife,  and  the  question  was,  whether  he  took  a  vested  inte- 
rest in  the  consols,  which  entitled  his  personal  representative  to  a 
transfer  of  them,  the  testator's  widow  being  dead  *?  And  Sir  W. 
Grant,  M.  R.  determined  in  the  affirmative,  and  thus  expressed  him- 
self:  "If  the  testator  had  given  the  stock  to  his  wife  for  life,  and  at 
her  death  to  Pringle,  the  latter  would  clearly  have  had  a  vested  in- 
terest in  the  nature  of  a  remainder.  In  a  will,  it  is  not  material  in 
what  order  the  clauses  are  arranged.  The  question  is,  what  is  the 
effect  upon  the  whole  *?  This  testator  begins  by  giving  to  Pringle 
the  stock  at  the  death  of  his  wife,  and  then  gives  to  his  wife  the 
whole  of  his  property.  Consequently,  she  has  a  life  interest  in  that 
stock  so  given  to  Pringle  at  her  death,  for  it  is  part  of  the  testator's 
property  not  antecedently  disposed  of.  Thus  the  will,  no  matter  in 
what  order,  divides  the  fund  between  these  two  persons ;  giving  to 
one  the  interest  for  life,  and  to  the  other  the  capital  at  her  decease. 
In  effect  and  substance  Pringle  took  a  remainder,  which  became 
vested  immediately  upon  the  testator's  death,  and  was  not  defeated 
by  his  own  death  in  the  lifetime  of  the  wife." 

3.  We  shall  now  proceed  to  consider  the  cases  which  form  excep- 
tions to  the  general  rule,  that  legacies  in  remainder  vest  at  the  same 
times  as  the  particular  interests  previously  given. 

It  has  been  settled  by  a  variety  of  cases,  that  if  only  the  interest 
or  dividends  of  property  be  bequeathed  for  life,  and  the  context  of 
the  will  show  that  no  interest  in  the  principal  was  intended  to  pass 
until  after  the  determination  of  the  life  estate,  the  remainder  will  not 
vest  during  the  continuance  of1  the  particular  estate,  because  there 
is  no  disposition  of  the  capital  distinct  from  the  period  appointed  for 
the  payment  or  distribution  of  it,  viz.  upon  the  death  of  the  tenant 
for  life.  But  to  prevent  the  vesting  of  the  remainder,  the  contents 

(e)  16  Ves.  314  and  see  Weedon  v.  Fell,  2  Atk.  123.  Hatch  v.  Mills,  1  Eden, 
342.  Devisme  v.  Mello,  1  Bro.  C.  C.  537.  Corbyn  v.  French,  4  Ves.  418.  Lady 
Lincoln  v.  Pelham,  10  Ves.  166.  Walker  v.  Shore,  15  Ves.  122.  Hallifax  v. 
Wilson,  16  Ves.  168.  Walker  v.  Main,  Uac.  8c  Walk.  1  anAJnte,  Chap,  II. 
sect.  1.  p.  45. 


SECT.  III.]          payable  out  of  Personal  Estate.  397 

of  the  will  must  clearly  show  such  to  be  the  testator's  intention,  for 
we  have  seen  that,  whether  the  interest,  or  the  fund  itself  be  given  to 
or  in  trust  for  Ji.  for  life,  with  remainder  to  B.  absolutely,  the  re- 
mainder will  vest  in  B.  at  the  death  of  the  testator,  the  intent  being 
that  B.  should  have  the  capital  at  all  events  at  the  demise  of  .#.,  on 
whose  account  alone,  the  enjoyment  of  it  by  B.  was  postponed.  The 
preceding  and  following  cases  will  illustrate  these  remarks. 

In  Billingsley}v.  WiUs,(f}  the  testator  gave  to  his  brother  Capel 
Billingsky',  the  interest  of  1500Z.  for  life,  and  from  and  after  his  de- 
cease he  gave  the  said  sum  of  1500/.  to  all  the  younger  sons,  and 
to  all  the  daughters  of  Capel,  equally,  to  be  paid  to  them  at  their 
ages  of  twenty-one  ;  declaring,  that  no  elder  son,  if  there  should  be 
more  than  one  son,  nor  any  elder  daughter,  if  there  were  only  daugh- 
ters of  Capel  living  at  his  decease,  should  have  any  share  or  interest 
in  the  1500J.  But  if  all  the  children  of  Capel,  except  one,  died  be- 
fore twenty-one,  then  he  gave  1000L,  part  of  the  1500Z.,  to  such 
surviving  only  child  to  be  paid  at  twenty-one.  Capel  had  three 
children  when  the  will  was  made,  and  another  child  after  the  testa- 
tor's death.  Letitia,  one  of  the  three  children  married  and  attain- 
ed twenty-one,  but  died  before  her  father.  The  question  was, 
whether  she  having  attained  twenty-one,  but  during  the  life  of  her 
father,  was  notwithstanding  entitled  to  a  vested  interest  in  a  share 
of  the  1500Z.,  so  as  to  transmit  it  to  her  husband,  the  defendant,  her 
personal  representative  *?  And  Lord  Hardwicke  determined  .that 
Letitia  took  no  vested  interest,  but  that  the  shares  in  remainder 
were  contingent  during  the  life  of  Capel  Billingsky,  since  there 
was  no  gift  of  the  capital  previously  to  his  death,  the  objects  to  take 
it  being  uncertain  till  that  event  happened,  and  consequently,  the 
time  of  payment  being  annexed  to  the  substance  of  the  gift  of  the 
legacy  which  was  at  the  death  of  Capel,)  as  Letitia  was  not  then 
living,  she  took  no  interest  in  it  which  she  could  transmit  to  her 
personal  representative.(g) 

So  in  Thicknesse  v.  Liege,(h)  Mr.  Berenger  bequeathed  his  re- 
siduary estate  to  his  executors  in  trust  to  place  at  interest,  and  then 
proceeded,  "  I  will  that  the  interest  money,  and  the  rents  of  my 
houses,  &c.  which  my  executors  shall  receive,  be  placed  at  interest, 
except  only  if  it  happen  that  my  daughter  survive  her  husband  ;  for 
then  my  will  is,  that  my  said  trustees  pay  to  her  every  year  during 
life  all  the  interest  of  the  residue  of  my  estate,  and  of  its  increase 
by  interest,  rents,  or  otherwise,  and  that  after  her  decease  they  divide 
equally  amorfg  her  issue  all  the  said  residuary  estate  and  increase  ; 
but  that  division  to  be  only  when  the  youngest  of  them  shall  be 
twenty-one  years  old  ;  and  if  any  of  them  be  then  dead,  leaving 
lawful  issue,  then  the  guardian  of  that  lawful  issue  may  ^ceive  its 
share.  But  if  my  daughter  die  without  any  child,  or  the%^vingest 
of  them  shall  not  attain  twenty-one,  and  none  of  them  shall  have 
left  lawful  issue,  then  I  will  that  my  residuary  estate  and  its  increase 
be  divided  into  four  parts  ;  one  of  which  I  give  to  Peter  Liege  (the 
respondent,)  &c."  The  testator's  daughter,  Elizabeth,  wife  of  John 
Lanove,  had  a  child  named  Mary,  six  years  old  when  the  will  was 

(/)  3  Atk.  219.     (g-)  See  the  case  of  Hoghton  v.  IVhitgreave,  1  Jac.  &  Wai,  146. 
(A)  3  Bro.  Parl.  Ca.  365.  373.  8vo.  ed. 
VOL.  i.  3  E 


398  Of  vested  Legacies  £Cn.  X. 

made,  who  survived  the  testator,  and  to  whom  he  was  godfather. 
She  married  the  appellant  Thicknesse,  attained  twenty-one,  and  died 
before  him,  leaving  four  children  who  died  in  infancy ;  and  they  and 
their  mother  Mary  died  before  Elizabeth;  but  Joyce,  the  survivor  of 
the  children  did  not  die  till  after  the  death  of  Mr.  Lanove,  the  hus- 
band of  Elizabeth.  Elizabeth,  having  survived  her  husband,  be- 
came entitled  to  the  interest  of  the  residue  for  life  ;  and  the  ques- 
tion which  arose  upon  her  death  was,  whether  the  appellant,  Thick- 
nesse, who  represented  Joyce  and  his  wife  Mary,  was  entitled  to 
the  residue,  or  the  donees  in  the  will,  who  claimed  it,  as  Elizabeth 
Lanove  left  no  child  at  her  death  *?  And  Lord  Bathurst  decreed, 
that  according  to  the  true  construction  of  the  will,  the  limitation 
over  had  taken  effect ;  and  he  ordered  the  property  to  be  divided 
among  the  donees  ;  a  decree,  which  proving  unsatisfactory  to  Mr. 
Thicknesse,  he  appealed  from  it  to  the  House  of  Lords,  insisting 
that  the  residue  vested  absolutely  in  Mary,  his  late  wife,  upon  her 
attaining  twenty-one,  subject  to  her  mother's  right  to  receive  the 
interest  for  life.  But  the  Lords  were  of  a  different  opinion,  and 
affirmed  Lord  BathursVs  decree. 

The  ground  for  the  final  decision  seems  to  have  been,  the  clear 
intention  of  the  testator  that  all  the  limitations  of  the  beneficial  in- 
terest in  his  residuary  property  should  be  contingent,  and  no  per- 
son take  a  vested  interest  in  it  before  the  right  of  enjoyment  ac- 
crued. That  it  so  appeared  from  the  plan  of  the  will,  and  the 
necessary  construction  of  it,  in  order  to  make  the  instrument  con- 
sistent and  effectual,  was  proved  by  the  reasoning  of  the  counsel 
for  the  respondents,  who  contended,  with  success,  that  there  was 
no  substantive  gift  to  make  the  legacy  immediately  vested,  but  that 
the  gift  and  the  time  of  payment  were  one  and  the  same,  viz.  after 
the  death  of  Elizabeth  Lanove.  The  limitations  in  the  will  clear- 
ly showed  that  the  testator  meant,  first,  to  provide  for  his  daughter, 
upon  the  contingency  of  her  surviving  her  husband,  and  afterwards 
for  such  of  her  issue  as  should  be  living  at  her  death  ;  and  if  there 
were  none,  then  for  such  of  his  relations  named  in  the  will,  or  their 
issue  as  should  be  then  alive. 

Similar  in  principle  with  the  last  case,  is  that  of  Reeves  v.  Bry- 
mer,(i)  in  which  Michael  Foster  bequeathed  to  his  wife  Taumason, 
the  interest  and  dividends  of  5000L  four  per  cent  bank  annuities  for 
life,  which  50001.  he  directed  should  be  continued  in  the  same  stock, 
and  then  be  shared  equally  among  his  children  then  living.  He 
also  gave  to  his  wife  a  leasehold  house  and  -premises  in  his  posses- 
sion, for  life,  and  then  to  be  let,  and  the  net  produce  to  be  equally 
placed  in  the  stocks  for  the  benefit  of  his  children  who  should  be 
then  living,  in  equal  'shares.  Upon  a  question  whether  the  bequest 
to  the  children  was  vested  at  the  death  of  the  testator,  or  remained 
contingent  during  the.  life  of  Taumason,  it  was  determined,  that  ac- 
cording to  the  true  construction  of  the  will,  the  legacies  did  not  vest 
during  her  life;  the  words  "then  living"  being  grammatically  re- 
ferrible  to  the  period  of  her  death,  and  not  to  the  testator. 

Also  in  Bennett  v.  Seymour, (k}  Archbishop  Wake  having  six 
daughters,  settled  by  deed  the  surplus  of  his  real  and  personal  es- 

(0  4  Ves.  692,  and  see  Leake  v.  Robinson,  2  Meriv.  363,  also  the  Duke  of  Man- 
chester v.  Bonham,  3  Ves.  61.  Pyle  v.  /Vice,  6  Ves.  779.  (£)  Ambl.  521. 


SECT.  III.]          payable  out  of  Personal  Estate.  399 

tales  (in  the  event  of  his  making  no  testamentary  disposition  of  them) 
in  trust  after  his  death,  for  his  wife  for  life,  with  a  direction  after 
both  their  deaths,  if  she  made  no  such  appointment  by  will,  that  his 
trustees  should  sell  the  lands,  and  equally  divide  the  proceeds  and 
his  residuary  personal  property,  among  his  six  daughters ;  the  share 
of  each  to  be  placed  at  interest,  and  such  interest  paid  to  them  re- 
spectively/or life  for  their  separate  uses  ;  and  after  their  respective 
deaths,  the  capital  share  of  each  daughter  was  to  be  paid  to  all  her 
children  by  her  first  husband  (excepting  an  eldest  or  only  son  for  the 
time  being)  in  equal  proportions ;  and  if  but  one,  then  to  such  only 
child ;  to  be  paid  to  sons  at  twenty-one,  and  to  daughters  at  that 
age  or  marriage,  with  benefit  of  survivorship,  in  the  event  of  the 
death  of  any  of  them  before  their  shares  became  payable.     But  if 
all  the  children  of  any  of  his  daughters  by  her  first  husband,  except 
as  aforesaid,  died  before  their  respective  shares  became  payable  as 
aforesaid,  the  testator  directed  that  those  shares  should  go  to  the 
eldest  or  only  son  of  such  daughter  or  daughters,  at  his  age  of 
twenty-one.     And  in  case  one  or  more  of  his  three  eldest  daughters, 
Ann  Seymour,  Ethelred  Bennett,  and  Hester  Brodripp,  should  die, 
without  any  child  or  children  living  at  her  or  their  deaths ;  or,  there 
being  such,  all  of  them  should  die  before  their  or  any  of  their  shares 
should  become  payable  under  the  aforesaid  trusts,  then  the  share  of 
the  same  daughter  or  daughters  should,  from  and  after  the  decease 
of  the  same  daughter  or  daughters,  and  failure  of  her  or  their  chil- 
dren, go  to  all  the  children  then  living,  or  after  to  be  born  of  the 
other  or  others  of  them  the  said  three  last  named  daughters,  to  be  paid 
as  the  shares  of  such  other  of  the  same  three  daughters,  would  have 
been  payable  to  her  or  their  children  under  the  aforesaid  trusts,  if 
such  daughter  or  daughters  had  been  then  actually  dead.     And  if 
all  the  said  three  eldest  daughters  died  without  children  living  at 
their  deaths  ;  or,  there  being  such,  all  of  them  should  die  before  their 
shares  became  payable  under  the  aforesaid  trusts,  then  such  shares 
should  go  to  the  children  then  living,  or  after  to  be  born  of  the  three 
youngest  daughters.     The  deed  contained  a  similar  proviso  in  re- 
gard to  the  shares  of  the  three  youngest  children,  with  the  ultimate 
limitation  to  the  three  eldest.     The  wife  being  dead  without  making 
an  appointment,  the  Archbishop  made  a  will,  devising  his  residuary, 
real  and  personal  estate,  upon  the  same  trusts  as  expressed  in  the 
deed.     His  daughter  Hester  had  issue  by  her  husband,  Richard  Brod- 
ripp, one  son  and  a  daughter,  both  of  whom  died  before  their  mother. 
The  son  attained  twenty-one,  and  died  intestate.     His  mother  Hester 
married  again,  and  died  leaving  Thomas  Strode,  her  second  husband, 
her  executor.     The  question  was,  whether  as  the  son  attained  twen- 
ty-one, the  capital  share  (the  interest  of  which  was  given  to  his  mo- 
ther Hester  for  life,)  did  not  vest  in  him,  although  he  died  before  her, 
so  as  to  be  transmissible  to  his  personal  representatives  ;  or  whether 
according  to  the  true  construction  of  the  will,  the  share  was  contin- 
gent during  the  life  of  the  mother,  so  as  to  entitle  the  children  of 
the  other  two  eldest  daughters  to  it  under  the  limitations  over  in  that 
instrument,  since  Hester  died  without  leaving  a  child  *?     And  Lord 
Hardwicke  was  of  opinion,  that  the  interest  in  the  capital  share  was 
contingent  during  Hester's  life,  and  he  determined  against  the  claim 
of  her  son's  personal  representatives. 


400  Of  vested  Legacies  [Cn.  X 

The  report  is  silent  as  to  the  reasons  upon  which  Lord  Hardwicke 
formed  his  opinion.  They  may,  however,  be  inferred  from  the  con- 
tents of  the  will ;  whence  it  seems  clear  that  the  testator  did  not  in- 
tend that  any  child's  original  share  should  vest  before  the  death  of 
its  mother.  This  appears,  first,  from  the  exception,  out  of  the  be- 
quest to  children,  of  an  eldest  or  only  son  for  the  time  being.  Ex- 
pressions which  can  only  have  etfect  by  postponing  the  vesting  of 
the  children's  shares  to  the  death  of  the  tenants  for  life.  Secondly, 
it  so  appears  from  the  testator's  including  the  eldest  or  only  son  of  a 
daughter  leaving  no  other  children  at  her  death.  Thirdly,  it  so  ap- 
pears from  the  limitation  over,  in  the  event  of  any  of  the  three  eldest 
daughters  dying  without  children,  to  the  children  of  the  other  two 
eldest  daughters  then  living.  And  lastly,  it  so  appears  from  the  ex- 
ecutory bequest  to  the  children  then  living  of  the  three  youngest 
daughters,  upon  the  contingency  of  the  three  eldest  dying  without 
children  living  at  those  periods.  Each  class  of  children  were  substi- 
tuted for  the  others,  upon  the  happening  of  events,  which  could  only 
arise  upon  the  supposition,  that  the  vesting  of  the  children's  original 
shares  was  deferred  till  the  deaths  of  their  parents.  Upon  these 
grounds,  it  is  presumed,  Lord  Hardwicke  was  of  opinion  that  the  in- 
terests in  remainder  were  contingent,  during  the  lives  of  the  daugh- 
ters, the  tenants  for  life. 

Upon  similar  reasoning,  the  case  of  Smith  v.  Vaughan(l]  was  de- 
cided. There  Mr.  Terrell  bequeathed  to  trustees,  an  annuity  of 
2001.  issuing  out  of  the  Exchequer,  in  trust  to  pay  it  to  his  sister 
Rebecca  Vaughan,  for  life,  and  after  her  death  to  assign  it  unto  and 
for  the  use  of  all  her  children  equally;  and  if  she  should  leave  but 
one  child,  then  the  whole  was  to  be  assigned  to  that  one.  Rebecca 
had  only  one  child,  which  died  before  her,  and  the  question  was, 
whether  the  reversionary  interest  in  the  annuity  vested  in  that  child 
during  its  mother's  life  "?  And  the  Master  of  the  Rolls  determined 
in  the  negative. 

That  the  reversionary  interest  in  the  last  case  was  intended  to  be 
in  contingency  during  the  mother's  life,  may  be  collected  from  the 
terms  of  the  will ;  for  it  is  obvious  that  the  testator  meant  the  chil- 
dren of  his  sister,  if  more  than  one,  to  take  the  annuity  as  tenants  in 
common ;  and  if  one  only  at  her  death,  that  one  to  take  the  whole. 
But  if  the  interest  were  to  vest  in  the  children  as  they  came  in  esse 
during  the  life  of  their  mother,  their  shares  would  be  transmitted  to 
their  personal  representatives,  although  they  died  before  her ;  a  con- 
struction which  would  defeat  the  testator's  intention  ;  as  he  express- 
ly declared,  that  if  Rebecca  left  only  one  child  at  her  death,  it  should 
take  the  whole  annuity.  Under  those  circumstances  the  Court  could 
not  but  be  of  opinion  that  the  division  of  the  annuity  was  to  take 
place  at  Rebecca's  death,  among  such  of  her  children  as  were  then 
living,  a  construction  which  rendered  the  will  consistent  in  all  its 
parts  ;  and  as  she  left  no  child,  the  bequest  necessarily  failed  for  want 
of  an  object. 

In  the  following  case  of  residue,  the  circumstance  of  children  be- 
ing in  esse  when  the  will  was  made  in  conjunction  with  a  particular 
clause  in  it,  was  declared  to  be  the  chief  reason  why  the  Court  held 

(0  Vin.  Abr.  tit.  «  Devise,"  381.  pi.  32. 


SECT.  IV.]          payable  out  of  Personal  Estate.  401 

the  remainder  to  children  to  be  contingent  until  the  death  of  the  te- 
nant for  life. 

The  case  alluded  to  is  Spencer  v.  Bullock,(m)  in  which  the  testa- 
tor gave  to  his  executors  1600i!.  in  trust  to  invest  in  stock,  and  to 
transfer  it  to  his  son,  John  Spencer,  at  twenty-one,  with  a  direction 
to  apply  the  intermediate  dividends  towards  his  maintenance,  &c. 
The  testator  gave  another  sum  of  1600Z.  to  his  executors,  upon  a 
similar  trust  for  his  daughter  Tabitha,  at  twenty-one,  or  marriage. 
He  also  gave  a  farther  sum  of  1 600Z.  to  be  laid  out  in  the  same  man- 
ner,^to  accumulate  during  the  life  of  his  son-in-law,  John  Hart,  and 
after  his  death  the  principal  and  accumulations  were  to  be  trans- 
ferred to  his  daughter,  Elizabeth  Hart;  but  if  she  died  before  her 
husband,  without  leaving  issue,  the  money  was  to  fall  into  the  resi- 
due. The  testator  then  gave  to  his  executors  his  residuary  estate,  to 
be  equally  divided  among  his  four  children,  Jane,  Elizabeth,  John, 
and  Tabitha  ;  directing  the  shares  of  John,  Elizabeth  and  Tabitha, 
to  be  invested  upon  the  like  trusts  as  their  previous  legacies  of  1600Z. 
a  piece,  and  the  share  of  Jane  to  be  invested  for  her  separate  use  for 
life,  and  the  principal  for  her  children  at  her  decease,  in  equal  shares  : 
provided  if  any  of  his  children  died  before  their  legacies  or  shares 
became  payable  without  having  issue,  he  gave  their  shares  to  the 
survivors ;  but  if  they  left  any  children,  such  children  were  to  take 
the  shares  of  their  parents,  as  tenants  in  common,  if  more  than  one 
child,  and  if  but  one,  it  was  to  take  the  whole.  Jane  had  three  chil- 
dren at  date  of  the  will,  who  survived  her.  She  had  other  three  at 
the  testator's  death,  and  three  more  afterwards  ;  and  of  the  latter 
six  children,  three  died  before  her,  whose  father  was  their  administra- 
tor ;  and  he  claimed  in  that  character  three-ninths  of  the  residue ; 
contending  that  the  children  took  vested  interests  at  the  death  of  the 
testator.  But  Lord  Mvanley,  M.  R.  was  of  opinion  that  the  vesting 
was  suspended  during  the  life  of  Jane. 

The  above  opinion  was  chiefly  founded,  as  Lord  Mvanley  decla- 
red, upon  the  circumstance  of  Jane  having  three  children  when  the 
will  was  made.  For  if  those  children  had  been  considered  to  take 
vested  interests,  and  happened  to  die  before  the  testator,  there  would 
have  been  a  partial  intestacy.  In  addition  to  this,  the  testator  anx- 
iously stipulated,  that  if  any  of  his  children  left  but  one  child,  it  was 
to  take  the  whole  share,  a  declaration  quite  inconsistent  with  an  in- 
tention to  give  vested  interests  to  children  during  the  lives  of  their 
parents.  His  Lordship,  therefore,  disallowed  the  claim  of  the  father, 
and  ordered  the  share  of  Jane  to  be  distributed  in  sixths,  among  her 
surviving  children. 

It  has  been  shown  that  legacies  given  at  future  periods  (which 
must  arrive,)  in  the  nature  of  remainders,  vest  immediately  with 
the  particular  estates,  except  under  particular  circumstances.  We 
shall  next  consider — 

SECT.    IV.    The  vesting  in  interest   and    transmissibility  of 
contingent  executory  bequests. 

It  is  a  rule  of  construction  in  regard  to  contingent  executory  be- 
quests, that  the  interests  of  the  first  and  subsequent  takers,  quodam 

(>«)  2  Ves.  jun.  687.  and  see  Matthews  v.  Paul,  2  Wils.  C.  C.  64.  74, 


402  Of  vested  Legacies.  [Cu,  X* 

modo,  vest  uno  instanti ;  so  that  if  the  substituted  legatee  die  be- 
fore the  contingency  happens,  upon  which  he  is  to  succeed  to  the 
legacy,  his  representative  will  notwithstanding  be  entitled  to  it  so 
soon  as  the  event  shall  take  place. (w)  Suppose  then  a  bequest  be 
made  to  Jl.,  but  if  A.  died  under  twenty-one,  or  without  leaving 
children  or  issue,  to  B.,  although  B.  happened  to  die  before  «i., 
B.'s  personal  representative  would  be  entitled  to  receive  the  lega- 
cy upon  the  happening  of  the  contingency,  on  the  ground  of  its 
being  vested  in  right  in  B.  previously  to  his  decease(o).  . 

Thus  in  Pinbury  v.  Elkin(p),  the  testator  appointed  his  wife 
executrix,  and  gave  her  all  his  goods  and  chattels  ;  but  if  she  died 
without  issue  by  him,  then  the  property  was  to  remain  after  her 
decease  to  his  brother  J.  S.  J.  S.,  after  surviving  the  testator,  died 
before  the  wife,  who  afterwards  died  without  issue.  One  of  the 
questions  was,  whether,  as  J.  S.  died  before  the  wife,  the  legacy 
was  gone,  or  his  personal  representative  was  entitled  to  it  9  The 
solution  of  which  question  depended  upon  this,  whether  the  in- 
choate right  vested  in  J.  S.  at  the  death  of  the  testator.  And  it 
having  been  determined  that  the  event  upon  which  the  legacy  was 
given  to  J.  S.  was  not  too  remote,  Lord  Parker,  Ch.,  said  he  was 
of  opinion,  .that  this  possibility  went  to  the  executors  of  the  lega- 
tee. He  therefore  decided  in  favour  of  the  representative  of  J.  S. 

So  in  Barnes  v.  Allen^q),  where  Mr.  Allen  bequeathed  his  re- 
siduary personal  estate  in  trust  for  his  wife  for  life,  and  after  her 
death  to  their  children.  And  if  his  wife  should  live  until  such 
children  attained  twenty-one,  he  then  directed  his  trustees  to 
transfer  the  securities  upon  which  the  property  should  be  placed  to 
his  wife,  and  to  such  children  who  should  attain  their  said  ages,  or 
the  survivors  or  survivor  of  them,  equally.  But  if  it  should  happen 
that  his  wife  should  die  leaving  no  such  child  or  children  living  at 
her  death,  then  he  directed  his  trustees  to  transfer  all  such  securi- 
ties to  his  brothers  James  and  Henry ;  and  if  any  or  either  of  them 
should  be  then  dead,  to  the  survivor  for  his  own  use  and  benefit. 
The  testator  died  without  leaving  issue  by  his  wife,  and  Henry  sur- 
vived his  brother  James ;  but  both  of  them  died,  after  surviving  the 
testator  during  the  life  of  the  wife.  The  question  was,  whether 
the  plaintiff,  the  executor  of  Henry  the  surviving  brother,  was  en- 
titled to  the  whole  residue  ;  which  depended  upon  this,  whether 
Henry  took  a  vested  interest  in  the  whole  9  And  Lord  Thurlow 
decided  in  the  affirmative ;  remarking,  that  a  contingent  interest 
might  vest  in  right,  although  it  did  not  in  possession  ;  and  that 
contingent  or  executory  interests  might  be  as  completely  vested,  as 
if  they  were  in  possession.  He  therefore  declared,  that,  subject  to 
the  widow's  life  interest,  the  residue  vested  in  James  and  Henry  as 
joint  tenants ;  and  that  as  Henry  survived  his  brother,  the  whole, 
subject  as  aforesaid,  belonged  to  the  plaintiff,  his  executor. 

The  two  last  authorities  were  followed  by  Stanley  v.  Wise.(r) 

(ri)  Chauncy  v.  Graydon,  2  Atk.  616.  (o)  Anon.  2  Ventr.  347. 

(/z)  IP.  Will.  563. 

(y)  1  Bro.  C.  C.  181.  ed.  by  Belt.  3  Ves.  208.  where  this  case  is  stated  from 
Reg.  Lib. 

(r)  1  Cox,  432.  and  see  Fearne's  Ex.  Dev.  555.  7  ed.  and  Wilmot  v.  Wilmot, 
8  Ves,  10. 


SECT.  V.]  payable  out  of  Personal  Estate.  403 

In  that  case  the  testator,  having  four  daughters,  three  of  whom 
were  named  Mary,  Sarah,  and  Elizabeth,  bequeathed  to  Mary  and 
Sarah  4000Z.  a-piece ;  but  if  either  of  them  died  unmarried,  he 
empowered  her  to  dispose  of  4001.,  part  of  her  4000Z.  ;  and  the 
residue  of  that  sum  (3600Z.)  he  directed  to  go  and  be  divided  among 
his  surviving  daughters,  and  the  children  of  such  of  them  as  should 
be  then  dead  ;  the  children  taking  their  mothers'  share.  Sarah 
died  unmarried.  Elizabeth  had  five  children,  two  of  whom  sur- 
vived Sarah,  and  the  other  three  died  before  her ;  and  it  is  presum- 
ed that  Elizabeth  also  died  before  Sarah.  The  question  was, 
whether  the  interests  of  Elizabeth's  children  in  the  3600?.  vested 
as  they  came  in  esse,  subject  to  be  divested  upon  the  contingency 
of  Sarah's  marriage,  so  as  to  entitle  the  representatives  of  the 
three  children  dying  before  Sarah  (who  did  not  marry)  to  equal 
shares  with  the  two  children  who  survived  her  *?  And  Lord  Kenyan, 
M.  R.,  was  of  opinion,  that  all  Elizabeth's  children  took  vested 
interests,  and  that  the  fund  was  divisible  in  fifths. 

It  may  be  asked  whether,  as  the  interest  in  the  executory  bequest 
vests  in  the  second  legatee,  so  as  to  be  transmissible  to  his  personal 
representatives  notwithstanding  his  death  before  the  contingency 
happened,  that  circumstance  will  not  prevent  the  interest  from  vest- 
ing in  the  first  legatee.  We  shall  therefore  consider  in  the  next 
place — 

SECT.  V.  The  effect  upon  the  vesting  and  devesting  of  lega- 
cies, when  they  are  subject  to  a  limitation  over  upon  the 
happening  of  a  particular  event. 

1.  Where  the  gift  is  immediate,  with  a  limitation  to  "survivors" 
upon  the  death  of  any  of  the  legatees  without  leaving  issue,  or  under 
the  age  of  twenty-one  years. 

Sir  William  Grant,  M.  R.,  expressed  himself  to  the  following 
effect,  as  to  the  rule  of  construction  applying  to  the  present  subject: 
"I  take  it  to  be  clear  that  a  devise  over  upon  a  contingency  has  not 
the  effect  of  preventing  the  shares  of  legatees  from  vesting  in  the 
mean  time,  provided  the  words  of  bequest  be,  in  other  respects,  suf- 
ficient to  pass  a  present  interest;  but  that  such  a  devise  over  of  the 
entirety  may  be  called  in  aid  of  other  circumstances  to  show  that  no 
present  interest  was  intended  to  pass."(s) 

This  being  so,  the  following  may  be  asserted  as  a  general  proposi- 
tion :  That  if  a  legacy  be  given  to  A.,  and  no  time  of  payment  be 
expressed,  or  it  is  directed  to  be  paid  at  twenty-one,  and  if  Jl.  die 
before  that  age,  then  to  B.  the  legacy  will  vest  in  A.  at  the  death  of 
the  testator,  subject  to  be  divested  in  the  event  of  his  dying  under 
twenty-one.  Hence,  if  there  be  several  infant  legatees  of  the  same 
fund,  and  the  bequest  be  made  to  them  as  tenants  in  common,  with 
or  without  a  direction  for  payment  at  their  several  ages  of  twenty-one, 
but  if  any  of  them  die  under  that  age,  then  to  the  survivors ;  or  if 
all  of  them  previously  die,  then  to  B.;  those  bequests  over  will  not 
prevent  the  immediate  vesting  of  the  legacies,  until  one  of  the  lega- 
tees, attain  twenty-one ;  but,  on  the  contrary,  the  legacies  will  im- 

(s)  3  Meriv.  340.  and  see  Shepherd  v.  Ingram,  Ambl,  448.  and  Lyon  v.  Mitch- 
ell, 1  Mad.  467.  472. 


404  Of  vested  Legacies  [Cn.  X. 

mediately  vest  sub  modo;  i.  e.  subject  to  be  devested  upon  the  hap- 
pening of  the  contingencies,  on  which  they  are  given  over.  As 
examples  of  these  remarks. 

In  Deane  v.  Test,(t)  Mr.  Hoskins  bequeathed  to  his  sister  Deane's 
children  an  additional  legacy  of  2000/.  to  be  paid  out  of  a  particular 
fund,  and  to  be  divided  among  them  in  equal  shares ;  but  if  any  of 
them  died  under  twenty-one,  their  proportions  were  to  go  over  and 
be  paid  to  the  survivors.  The  question  was,  whether  the  children 
took  vested  interests  in  their  shares  at  the  testator's  death,  liable  to 
be  devested  upon  their  dying  under  twenty-one  9  And  Lord  Eldon 
decided  in  the  affirmative,  upon  the  principle  that  the  bequest  to 
them  was  immediate.  And  his  Lordship  said,  that  the  consequence 
of  the  children  taking  vested  interests  would  be,  that  if  any  of  them 
died  under  twenty-one,  the  produce,  at .  least  the  interest,  accrued 
from  the  death  of  the  testator,  would  go  to  the  child,  although  it 
would  take  nothing  in  the  capital. 

It  is  to  be  noticed,  that  the  principle  entitling  the  legatees  to  in- 
terest in  the  last  case  is  this,  that  the  legacy  was  due  and  payable  at 
the  testator's  death.  The  enjoyment  of  it  was  not  expressly  post- 
poned until  the  legatees  attained  the  age  of  twenty-one ;  for,  had 
the  payment  been  deferred  to  that  period,  they  could  not  have 
claimed  interest  during  the  intermediate  time ;  because,  they  not 
being  entitled  to  receive  the  capital  before  that  age,  their  right  to 
interest,  which  could  only  accrue  upon  delay  in  payment  of  the 
principal,  would  have  been  defective. (w) 

So  in  Davidson  v.  Dallas,(x)  the  bequest  was  "  to  the  children  of 
Robert  Davidson  in  equal  shares,  and  if  either  of  them  died  under 
twenty-one,  their  shares  to  go  to  the  survivors."  The  question  was, 
whether  the  legacy  vested  in  the  children  at  the  testator's  death,  so 
as  to  exclude  those  which  were  afterwards  born  *?  which  depended 
upon  this,  whether  the  division  and  the  vesting  of  the  fund  were  to 
take  place  at  the  former  period  *?  And  Lord  tildon  said,  "  that  the 
legacy  was  vested,  subject  to  be  devested  by  the  death  of  any  of  the 
children  under  twenty-one,  leaving  another  child  surviving;  that  it 
was  an  immediate  legacy  to  the  children  living  at  the  testator's 
death,  in  whom  it  vested  at  that  time,  in  equal  proportions,  with  a 
limitation  over,  if  either  of  them  died  under  that  age,  to  the  survi- 
vors ;  that  the  periods  of  division  and  vesting  were  one  and  the  same, 
viz.  the  death  of  the  testator ;  and  that,  therefore,  those  children 
only  who  were  living  at  that  time  were  entitled. "(y) 

In  the  last  two  cases,  the  events  upon  which  the  legacies  were  to 
go  over  are  definite,  and  clearly  expressed,  and  therefore  the  testa- 
tor's intention  easily  performed.  But 

2.  When  the  event,  upon  which  a  legacy  is  limited  over,  is  not  so 
clearly  conceived  and  expressed  by  the  testator  as  to  satisfy  a  court 
of  equity  of  his  intention  ;  or,  if  understood,  to  enable  it  to  carry 
that  intention  into  execution,  the  bequest  over  will  be  defeated,  and 
the  primary  legatee  will  take  an  indefeasible  vested  interest  at  the 
death  of  the  testator. 

Cases  of  this  description  may  arise  when  a  testator,  after  an  im- 

(0  9  Ves.  147.  152  (u}  Seevfn^,  sect.  3.  p.  383.  (or)  14  Ves.  576. 

(y)  In  relation  to  this  subject,  sec  Chap,  ll.  sect.  1. 


SECT.  V.]  payable  out  of  Personal  Estate.  405 

mediate  gift  to  a  legatee,  declares,  that  if  he  (the  legatee)  die  before 
he  might  have  received  the  money,  or  before  it  might  have  been  re- 
covered,^) the  legacy  shall  go  over  to  B.  In  those  instances  the 
intention  is  conceived  and  expressed  with  so  little  certainty  in  regard 
to  the  time  when  B.  is  to  take  it,  that  a  court  of  equity  will  not 
venture  to  act  upon  it ;  consequently,  the  interest  will  vest  in  the 
first  legatee  immediately  and  absolutely,  and  he  will  be  entitled 
to  payment  of  the  legacy  at  the  end  of  a  year  afte.r  the  testator's 
death. 

In  Hutchin  v.  Mannington,(a)  the  testator,  after  noticing  that  his 
fortune  was  vested  upon  securities  in  the  East  Indies,  gave  several 
legacies.  Most  of  them  were  particular  to  several  of  his  brothers 
and  sisters,  with  clauses  annexed  to  each,  directing  that  "  if  the  lega- 
tee should  die  before  he  or  she  might  have  received  the  legacy,  it 
should  go  to  the  children  of  the  legatee  equally,  and  in  default  of 
issue,  among  the  other  brothers  and  sisters."  Then  the  testator, 
after  stating  how  much  the  legacies  would  amount  to,  gave  the  re- 
sidue (calculating  the  amount)  to  his  father  absolutely,  "  but  in  case 
of  his  death  before  he  might  have  received  it"  he  gave  it  to  his  bro- 
thers and  sisters  and  their  children.  The  testator  died  about  the 
year  1781,  and  his  father  in  1784,  without  having  received  any  part 
of  the  residue  ;  and  the  question  was,  whether  the  brothers  and  sis- 
ters were  entitled  to  it  under  the  limitation  over,  or  the  father  took 
an  absolute  vested  interest  in  the  fund  at  the  death  of  the  testator, 
so  as  to  entitle  his  personal  representative  to  claim  it,  although  the 
father  died  before  receipt  of  any  portion  of  it ;  upon  the  ground 
that  the  bequest  over,  if  the  father  died  before  he  might  have  re- 
ceived the  residue,  was  an  event  so  uncertain,  and  so  impracticable 
to  ascertain,  as  to  be  insufficient  to  divest  the  bequest  which  had 
vested  in  the  father  9  And  Lord  Thurlow  was  of  opinion,  that  the 
father  took  an  absolute  vested  interest"  in  the  property  at  the  death 
of  the  testator,  and  consequently  that  the  brothers  and  sisters  had 
no  title. 

His  Lordship's  reasons  for  the  above  opinion  were  these ;  that, 
although  there  was  a  faint  indication  of  an  intent  that  there  should 
be  some  time  or  other  .when  the  interests  of  the  legatee  should  go 
over,  yet  the  testator  had  not  conceived  that  intention,  and  ex- 
pressed it  with  sufficient  definite  certainty,  that  the  Court  could 
act  upon  it ;  that  it  .was  too  uncertain.  But  his  Lordship  remarked, 
if  the  testator  had  given  any  time  which  could  be  discovered  afford- 
ing some  rule  to  go  by,  his  intention  should  prevail. (6) 

•>.  Hence  it  may  be  considered,  that  if  the  testator  had  declared 
the  bequest  over  should  take  place,  in  the  event  of  the  legatee 
dying  before  he  received  the  property,  or  before  tliefund  was  actually 
realised  by  the  executor,  the  executory  limitation  would  have  been 
good.(c) 

To  that  effect  Lord  Thurlow  had  previously  determined  in  the 
case  of  Faulkener  v.  Hollingsworth,  stated  by  Sir  W.  Grant  in  Elwin 

(z)   Wood  v.  Penoyre,  13  Ves.  325.  T(a)  1  Ves.  jun.  366. 

(6)  See  Lord  Eldon's  comments  upon  this  case,  11  Ves.  497. 
(c)  11  Ves.  497.  502.  and  see  ante,  sect.  2.  p.  376. 
VOL.  i.  3  F 


406  Of  vested  Legacies  [Cn.  X. 

v.  Elwin,(d)  a  decision  followed  by  the  latter  Judge  in  the  case  just 
referred  to,  which  was  as  follows  : 

Caleb  Ehuin,  after  devising  to  his  wife  several  freehold  and  copy- 
hold estates  for  life,  upon  condition  that  she  released,  as  she  did,  her 
title  to  dower  in  his  other  real  property,  directed  that  his  brother, 
Peter  Ehvin,  should,  so  soon  after  his  wife's  death  or  refusal  to  re- 
lease her  dower  as  conveniently  might  be,  sell  all  his  lands,  &c. ; 
and  he  gave  the  produce  and  the  intermediate  rents  to  be  paid  to 
and  equally  divided  among  his  five  nephews,  children  of  Peter,  "  at 
such  time  as  the  sale  should  be  completed,  in  case  they  were  then 
living;  but  if  any  of  them  died  before  him  (the  testator,)  or  pre- 
viously to  the  sale  of  the  estates  should  be  completed,  leaving  issue, 
then  his  or  their  shares  were  to  be  equally  divided  among  his  or  their 
children,"  &c.  The  estates  were  not  sold  during  the  life  of  Peter, 
the  nephew,  who,  after  surviving  the  testator's  wife,  died  leaving 
three  children.  And  the  question  was,  whether,  as  the  sale  of  the 
property  did  not  take  place  before  the  death  of  the  nephew  Peter, 
the  share  of  it,  intended  for  him,  did  not  belong  to  his  children,  by 
virtue  of  the  limitation  over  depending  upon  that  event  9  And  Sir 
W.  Grant  determined  in  their  favour,  upon  the  principle,  that  the 
executory  bequest  did  not  rest  upon  any  difficulty,  or  an  uncertain 
event.  The  words  were  clear,  requiring  no  construction,  and  the 
event  easily  to  be  ascertained. 

It  is  a  consequence  from  what  has  been  said,  that  wherever  a  tes- 
tator has  defectively  expressed  the  event  upon  which  a  legacy  shall 
go  over,  yet,  if  his  meaning  can  be  discovered  from  a  reasonable 
construction  of  the  whole  will,  the  Court  will  effectuate  the  intention, 
when  it  is  practicable.  Suppose  then  the.  event  to  devest  a  legacy 
is  thus  described;  "  in  case  of  the  death  of  the  legatee,"  without 
annexing  to  those  terms  his  dying  within  any  particular  period ;  the 
Court  will  put  a  construction  upon  those  words  founded  on  the  tes- 
tator's intention,'  collected  from  the  contents  of  his  will.  We  shall 
therefore  proceed  to  consider — 

4.  The  construction  to  be  put  upon  a  clause  divesting  and 
limiting  over  a  bequest  "  in  case  of  the  death  of  the  legatee,"  ge- 
nerally. 

The  words  in  which  such  a  bequest  over  is  expressed,  neither 
have  nor  by  construction  have  they  received  a  precise  and  definite 
meaning,  in  which  they  must  be  uniformly  understood.  The  ex- 
pression itself  is  incorrect,  as  it  applies  words  of  contingency  to  an 
event  which  is  certain.  No  person  can  with  propriety  speak  of 
death  as  a  contingent  event,  which  may  or  may  not  happen.  When 
therefore  a  testator  so  expresses  himself,  the  question  is,  what  he 
means  by  that  inaccurate  expression.  He  may  perhaps  have  had 
some  contingency  in  his  mind;  as  that  the  legatee  was  dead  at  the 
time  he  was  making  the  will,  or  might  die  before  the  testator,  or 
before  the  legacy  should  be  payable,  and  then  the  inaccuracy  con- 
sists in  not  specifying  the  period  to  which  the  death  was  to  be  re- 
ferred. He  might  have  meant  to  speak  generally  of  the  death 
whenever  it  might  happen,  and  then  the  contingent  or  conditional 
words  must  be  rejected,  and  words  of  absolute  signification  must  be 

(rf)  8  Ves.  547. 


SECT.  V.]  payable  out  of  Personal  Estate.  407 

introduced;  and  accordingly,  in  every  instance  in  which  these 
words  have  been  used,  Courts  have  endeavoured  to  collect  from  the 
nature  and  circumstances  of  the  bequest,  or  the  context  of  the  will, 
in  which  sense  it  is  most  likely  this  doubtful  and  ambiguous  expres- 
sion was  employed. (e)  In  treating  of  this  subject,  we  must  distin- 
guish between  immediate  bequests  with  a  limitation  over  "  in  case 
of  the  death  of  the  legatees,"  and  when  such  clauses  are  annexed  to 
legacies  given  at  future  periods,  as  after  the  determination  of  pre- 
ceding interest  for  lives.  And — 

FIRST  when  the  legacy  is  immediate,  but  made  defeasible  "  in 
case  of  the  death  of  the  legatee.'.' 

It  is  a  settled  rule  upon  this  subject,  that  if  a  legacy  be  given  to 
J\.  generally,  "  and  in  case  of  his  death,"  to  B.,  those  expressions, 
unexplained  by  the  context  of  the  will,  are  to  be  confined  to  the 
event  of  death  happening  during  the  life  of  the  testator;  so  that,  if 
the  legatee  survive  him,  the  legacy  will  immediately  vest,  discharg- 
ed of  the  executory  bequest  to  B.;  and  parol  evidence  that  the  tes- 
tator used  the  words  in  a  different  sense  cannot  be  admitted.  • 

Thus  in  Lowfield  v.  Stoneham,(f)  the  testator  gave  to  his  brother 
John  Stoneham,  WOOL  "  and  in  case  of  his  death,"  to  the  defendant 
Susannah.  It  appeared  that  John  survived  the  testator;  and  the 
plaintiff  insisted  that  the  legacy  vested  absolutely  in  John,  and  was 
assets  in  the  hands  of  the  defendant  who  had  received  it.  Parol 
evidence  was  offered  by  the  defendant  to  prove  that  the  testator  in 
extremis  declared  he  meant  only  to  give  to  John  the  interest  of  the 
1000Z.  and  that  the  defendant  should  have  the  principal  if  she  sur- 
vived him ;  but  the  evidence  was  rejected  by  the  Court,  as  being 
inadmissible  to  contradict  the  plain  words  of  the  will ;  and  it  seems 
that  the  plaintiff,  as  representing  John  Stoneham,  was  adjudged  to 
be  entitled  to  the  legacy,  which  consequently  must  have  vested  in 
him  at  the  testator's  death,  discharged  of  the  limitation  over  to 
Susannah. 

The  last  case  was  acknowledged  by  the  Master  of  the  Rolls  in 
Hinckley  v.  Simmons,(g)  where  the  testatrix  bequeathed,  to  her 
sister  Mary  Hinckley  all  her  fortune,  and  whatever  she  had  power 
to  leave;  "  and  in  case  of  Mary's  death,"  she  gave  all  she  had  to 
her  mother.  Mary  survived  the  testatrix,  and  it  was-  determined 
that  she  took  an  absolute 'vested  interest  in  the  property  at  the  death 
of  the  testatrix,  and  that  the  limitation  over  depended  upon  her 
dying  before  the  testatrix. 

So  also  in  Turner  v.  Moore,(h)  the  bequest  was  of  15,OOOZ.  three 
per  cent,  consols  to  the  testator's  nephew  Robert  Dalrymple,  then  or 
lately  residing  in  India,  "  or  in  the  case  of  his  death,"  to  his  issue, 
but  if  Robert  should  be  dead  at  the  decease  of  the  testator  without 
leaving  issue  (events  which  happened,)  then  the  testator  gave  3000J. 
of  the  stock  to  John  Turner,  "  or  in  case  of  his  decease,"  to  his  issue. 
He  bequeathed  in  the  like  manner  3000?.  further  part  of  the  stock, 
to  Robert  Turner,  or  his  issue ;  and  he  gave  6000J.  or  other  part  of 
the  stock,  to  his  cousin  Ramsey,  "  or  in  case  of  his  death  to  his  issue. 

(0  8  Ves.  21. 

.  (  /)  2  Stra,  1261.  mentioned  by  the  Master  of  the  Rolls  in  Cambridge  v.  Rous, 
infra,  p.  408.  (3-)  4  Ves.  161.  (A)  6  Ves.  557. 


408  Of  vested  Legacies  [Cn.  X. 

Sir  W.  Grant  determined  that  the  two  legatees  took  absolute  vested 
interests  in  the  capitals,  at  the  death  of  the  testator. 

It  is  perceptible  in  the  last  will,  that  the  testator's  intention  was 
consistent  with  the  rule  established  by  the  preceding  cases,  where 
the  instruments  afforded  no  such  testimony.  The  gifts  were  made 
to  the  legatees  ;  or,  in  the  event  of  their  deaths,  to  their  issue,  plainly 
showing  the  intent,  that  if  the  parent  survived  the  testator,  he  alone 
should  take  the  absolute  interest,  and  his  children  nothing.  This 
intention  was  corroborated  in  the  bequest  to  Robert,  for  he  was  sup- 
posed to  be  in  India  at  the  date  of  the  will,  and  the  testator  was 
ignorant  whether  he  were  then  living  or  dead ;  or,  if  dead,  whether 
he  left  any  issue.  But  it  was  obvious  that  if  he  should  survive  the 
testator,  he  was  intended  to  take  the  fund  absolutely ;  and  it  was 
equally  clear,  that  if  he  were  then  dead,  leaving  issue,  the  latter 
were  meant  to  be  substituted  in- his  place.  The  rule  of  construction 
being  thus  established  in  relation  to  the  first  bequest,  could  not,  with 
propriety,  be -varied  in  expounding  the  same  words,  occurring  again 
in  other  parts  of  the  will. 

The  attention  of  the  same  Judge  was  again  called  to  a  similar 
question  in  Cambridge  v.  Rous,(i]  in  which  Mr.  Van  Mierop,  being 
in  the  East  Indies,  bequeathed  to  his  eldest  sister  Martha  4001. ; 
"  and  in  case  of  her  death,"  to  devolve  upon  her  sister  Cornelia. 
He  also  gave  to  Cornelia  the  like  sum  of  money,  "  and  in  case  of 
her  death,"  to  devolve  upon  Martha  Both  the  sisters  survived  the 
testator,  and  Sir  William  Grant  decided  that  the  absolute  interest 
in  the  legacies  vested  in  them  at  the  testator's  death. 

Similar  to  the  case  of  Turner  v.  Moore,  the  testator  was  in  the 
case  last  stated,  at  a  great  distance  from  his  sisters,  and  might  have 
been  in  uncertainty  as  to  their  being  living  or  dead.  In  the  ab- 
sence of  a  contrary  intention  appearing,  the  presumption  is  natural, 
that  he  meant  to  make  a  separate  and  independent  provision  for 
each  sister,  if  both  should  live  to  take  the  benefit ;  consequently,  the 
expression,  "  in  case  of  her  death,"  must  have  been  used  as  .words 
of  contingency  to  denote  the  death  of  either  sister  before  the  testa- 
tor, a  construction  which  vested  absolute  interests  in  both  of  them 
at  the  testator's  decease,  as  in  the  preceding  cases. (k) 
.  In  the  following  authority,  there  was  a  variation  in  the  expres- 
sions, and  still  the  determination  was  the  same ;  the  natural  con- 
struction of  the  words  were  considered  to  import  dispositions  in  the 
alternative,  and  not  a  mere  gift  to  one  person  for  life,  with  remainder 
to  another. 

The  case  alluded  to  is  Webster  v.  Hale,(l)  in  which  Mr.  Findlay 
bequeathed  in  trust  for  the  use,  exclusive  right,  and  property  of  his 
sister  Clementina,  8000Z.  Irish  five  per  cents.;  "  but  should  she  hap- 
pen to  die,"  then  and  in  that  case  the  above  mentioned  sum  was  to 
be  equally  divided  among  her  children.  He  also  gave  to  Ckmen- 
tina  40001.  three  per  cent,  reduced  stock  to  be  paid  to  her  as  soon  as 
possible,  "  or  in  the  event  of  her  death,"  the  said  sum  was  to  be 

(j)  8  Ves.  13.  21. 

(£)  See  the  judgment,  8  Ves.  23.  and  the  case  next  stated,  ibid,  413.  See 
Montagu  v.  Micella,  1  Russ.  165 

(/)  8  Ves.  410.  To  the  same  effect  see  Slade  v.  Milner,  4  Madd.  144.  and 
Ommaney  v.  Bevan,  18  Ves.  291. 


SECT.  V.]  payable  out  of  Personal  Estate.  409 

equally  divided  among  her  children.  The  testator  then  gave  to  his 
sister  Helen  WOOL  East  India  stock,  "  and  in  case  of  her  death," 
the  stock  was  to  be  equally  divided  among  her  children.  Lastly,  he 
bequeathed  to  Mrs.  Findlay  20001.  three  per  cent,  reduced  stock,  to 
be  paid  to  her  as  soon  as  possible,  and  to  be  entirely  at  her  disposal, 
and  Janet  Walker  1000?.  in  the  four  per  cents. 

His  Honour  remarked,  that  the  two  bequests  to  Clementina  pointed 
more  to  alternative  dispositions,  than  to  gifts  in  succession;  viz.  to 
her  for  life,  and  afterwards  to  her  children.  In  the  first,  the  word 
"  but"  was  disjunctive  and  adversative.  It  opposed  one  case  to 
another,  and  implied  that  the  children  were  to  take  in  an  event  dif- 
ferent from  that  of  the  parent.  In  the  second  bequest  the  direction 
was  for  payment  to  Clementina  as  soon  as  possible,  "  or  in  the  event 
of  her  death."  among  her  children ;  a  direction  affording  strong  im- 
plication of  the  testator's  meaning  to  give  to  Clementina  the  entire 
and  absolute -property.  Such  being  the  apparent  intention  in  regard 
to  those  two  legacies,  his  Honour,  after  commenting  upon  the 
others,  was  of  opinion  that  the  testator's  meaning  was  the  same  in 
regard  to  his  sister  Helen,  and  therefore  adjudged  that  both  sisters 
took  absolute  vested  interests  in  their  legacies  at  the  testator's  death ; 
their  own  demises  being,  according  to  the  rule  before  stated,  re- 
strained to  the  contingency  of  that"  event  happening  during  the  life 
of  the  testator. 

SECOND.  When  the  gift  of  the  legacy  is  not  immediate,  but  in 
remainder  after  an  estate  for  life,  with  a  bequest  over,  in  case  of 
the  death  of  the  legatee." 

The  avowed  end  and  aim  of  every  construction  being  to  give 
effect  to  the  intention  of  testators  as  expressed  in  or  collected  from 
their  will,  it  seems  that  where  a  bequest  is  not  immediate,  but  in 
remainder,  with  an  executory  limitation,  "in  case  of  the  death  of 
the  legatee ;"  those  expressions  will  be  applied  to  the  period  when 
the  remainder  takes  effect  in  possession,  viz.  the  death  of  the  per- 
son taking  the  preceding  interest.  Suppose,  then,  the  annual  pro- 
duce of  10001.  to  be  bequeathed  to  A.  for  life,  and  the  capital  in 
remainder  to  B.  "  and  in  case  of  the  death  of  5."  to  C.  The 
happening  of  B.'s  death  will  not  be  confined  to  that  of  the  testator, 
so  as  absolutely  to  vest  the  legacy  in  B.  upon  surviving  him,  as  in 
the  preceding  cases  ;  but  the  event  of  B.  dying  will  be  .continued 
during  the  life  of  A.  the  tenant  for  life  :  consequently,  if  the  con- 
tingency happen  during  that  period,  the  interest,  which  condition- 
ally vested  in  B.,  will  be  divested,  and  the  legacy  go  over  to  C. 

An  instance  of  this  kind  occurred  in  Galland  v.  Leonard(m.) 
In  that  case  Francis  Mell  bequeathed  his  residuary  personal  estate 
in  trust  for  his  wife  for  life,  with  a  direction  to  the  trustees  to  divide 
the  trust  fund,  after  the  death  of  his  wife,  between  his  daughters 
Hannah  and  Ann,  for  their  own  use  ;  "  and,  in  case  of  the  death  of 
his  daughters,  or  either  of  them,  leaving  a  child  or  children,"  to 
apply  a  sufficient  part  of  the  interest  towards  their  maintenance, 
during  jninority  ;  and  upon  their  attaining  twenty-one,  to  distribute 
the  capital  among  them,  per  stirpes ;  remainder  over  if  the  daugh- 
ters left  no  issue  which  attained  twenty-one.  The  wife  and  two 

(m)  1  Swanst.  161. 


410  Of  vested  Legacies  [Cn.  X. 

daughters  survived  the  testator,  the  former  of  whom  is  still  living. 
And  the  question  was,  whether  the  daughters  took,  absolute  and 
indefeasibly  vested,  interests  in  the  residue  at  the  testator's  death  *? 
a  question  which  depended  upon  this  preliminary  consideration  ; 
viz.  whether  the  events  of  the  daughters  dying  were  to  be  restricted 
to  the  death  of  the  testator,  or  to  subsist  in  contingency  during  the 
life  of  the  widow  ?  And  Sir  Thomas  Plumer,  M.  R.  determined, 
1st,  that  the  gifts  to  the  daughters  were  absolute,  though  defeasi- 
ble in  the  event  of  their  dying  within  a  particular  time  ;  and,  2dly, 
that  such  period  was  not  limited  to  the  death  of  the  testator,  but 
•was  to  continue  during  the  life  of  the  widow. 

So  in  Harvey  v.  J\rLaughlin(n,)  a  case  in  the  court  of  Exchequer, 
the  bequest  was  to  a  trustee  of  1600J.  Old  South  Sea  annuities  to 
pay  the  dividends  to  Eleanor  Todd  for  life,  to  her  separate  use ; 
remainder  as  to  the  capital,  to  be  equally  divided  among  Eleanor's 
three  children  ;  "  and  in  case  of  the  death  of  either  of  them,  the 
share  of  such  as  might  die  was  to  go  to  and  belong  to  the  children, 
or  the  child  if  but  one,  of  the  persons  so  dying."  One  of  the  three 
children  (a  son,)  after  surviving  the  testator,  died  before  the  widow, 
leaving  children.  And  the  question  was  between  his  administra- 
trix and  his  children  ;  the  former  contending  that  the  event  of  the 
son's  death  was  limited  to  its  happening  during  the  life  of  the  tes- 
tator ;  whereas  the  latter  insisted  that  the  contingency  was  intend- 
ed to  subsist  until  the  death  of  the  widow,  the  tenant  for  life  of  the 
fund,  which  event  having  taken  place,  established  their  title  under 
the  executory  limitation  in  the  will.  And  so  the  Court  decided, 
and  declared,  that  "the  shares  of  Eleanor's  three  children  vested 
in  thenij  subject  to  be  divested  in  case  of  the  deaths  of  any  of  them 
in  her  lifetime,"  (to  which  must  be  added)  if  they  left  chil- 
dren^.) 

In  all  the  instances  which  have  been  produced  it  was  obviously 
the  intention  of  testators  to  give  the  absolute  property  in  the  funds 
to  the  legatees,  with  a  contingent  limitation  over  upon  the  deaths 
of  those  legatees  within  a  particular  period  ;  which,  from  the  de- 
fective manner  of  expression,  it  was  frequently  difficult  to  ascer- 
tain. But  when  it  appears  from  the  contents  of  a  will  to  have 
been  the  meaning  of  a  testator  in  adopting  the  terms  "  in  case  of  the 
death"  of  a  legatee,  that  the  legacy  should  go  over  upon  his  decease 
whenever  it  might  happen,  then  the  words  denoting  contingen- 
cy will  be  rejected,  and  words  of  absolute  signification  introduced  ; 
the  effect  of  which  will  be  to  give  the  first  taker  only  an  estate  for 
life,  and  the  absolute  interest  to  the  persons  in  remainder ;  in- 
terests which  will  vest  in  the  several  legatees  in  manner  de- 
scribed in  the  third  section(p).  We  shall  therefore  proceed  to 
consider — 

THIRDLY,  the  instances  in  which  a  limitation  over  "  in  case  of  the 
death  of  the  legatee"  does  not  import  contingency,  but  the  words 
are  used  in  the  sense  of  the  death  of  the  legatee  generally,  when- 
ever the  event  shall  happen. 

In  Billings  v.  Sandom,(q)  the.  testator  gave  to  his  sister  Sarah, 

(n)  1  Price,  264.  (o)  See  infra,  p.  412.  in  this  sect,  sub-div.  5. 

(ft)  Ante,  p.  392-3.  (y)  1  Bro.  C.  C.  393. 


SECT.  V.]  payable  out  of  Personal  Estate.  411 

1000Z.  "  and  in  case  of  her  demise"  to  the  plaintiff  and  another  per-  . 
son.  And,  after  bequeathing  several  legacies,  he  gave  to  Sarah, 
whom  he  appointed  executrix,  his  residuary  personal  estate,  to  be 
disposed  of  as  she  thought  proper.  The  question  arose  upon  the 
clause  "  in  case  of  her  demise,"  viz.  whether  the  words  alluded  to 
the  death  of  Sarah  generally,  or  to  tHe  contingency  of  her  dying  be- 
fore the  testator  *?  And  Lord  Thurlow  determined,  that  no  contin- 
gent or  alternate  bequest  was  intended  in  the  present  case,  but  that 
it  was  the  meaning  of  the  testator  that  Sarah  should  enjoy  the  lega- 
cy of  1000Z.  for  life,  and  the  persons  in  remainder  be  entitled  to  the 
capital  after  her  decease. 

His  Lordship  appears  to  have  founded  his  opinion  upon  the  inter- 
nal evidence  supplied  by  the  will.  The  testator  distinguished  be- 
tween absolute  bequest  and  the  gift  of  a  partial  interest.  When  he 
intended  Sarah  to  take  the  entire  property,  he  expressly  said  so,  as 
in  the  disposition  to  her  of  the  residue  ;  and  when  he  intended  to 
give  her  no  more  than  a  qualified  estate,  he  meant  to  express  it,  but 
so  incorrectly  from  the  terms  he  adopted,  that  they  imported  an  ab- 
solute bequest  defeasible  upon  a  contingency  instead  of  a  limitation 
for  life.  The  testator's  intention,  however,  being  apparent,  the 
Court  rejected  the  words  of  seeming  contingency  "  in  case  of,"  and 
substituted  for  them  the  words  "  a£"  or  "upon."  With  which  al- 
teration the  clause  stood  thus:  "I  give  to  Sarah,  1000Z.,  and  at  or 
upon  her  demise,  I  give  the  money  to,"  &c.  ;  a  form  of  bequest  which 
would  give  Sarah  an  interest  for  life,  with  a  vested  remainder  to  the 
persons  to  whom  it  was  limited. 

The  principle  of  the  last  decision  was  adopted  by  Lord  Rosslyn 
in  Lord  Douglas  v.  Chalmer,(r)  in  which  Lady  Greenwich  bequeath- 
ed her  residuary  personal  estate  (subject  to  the  payment  of  a  prece- 
ding legacy  and  any  other  bequests  she  should  make  by  a  codicil,) 
in  trust  "  for  and  to  the  use  of  her  daughter,  Lady  Douglas  ;  and  in 
case  of  her  decease,  to  the  use  of  her  children  equally."  By  a  codi- 
cil made  two  years  subsequent  to  the  date  of  the  will,  the  testatrix, 
among  a  variety  of  specific  bequests,  "  gave  her  finest  diamond  ring 
to  Lady  Douglas ;"  and  her  wearing  apparel,  &c.  to  Mary  Monk, 
"  or,  if  she  should  be  dead  before  her"  (the  testatrix,)  then  to  another 
person.  The  question  was,  whether  Lady  Douglas  took  the  residue 
absolutely,  as  she  survived  the  testatrix,  or  an  interest  in  it  for  life 
only,  with  remainder  to  her  children "?  And  the  Chancellor  decided 
that  her  Ladyship  was  merely  entitled  for  life. 

It  was  upon  the  particular  circumstances  of  the  case  that  Lord 
Rosslyn  made  the  above  decree.  As  the  testator  in  Billings  v. 
Sandom,  so  the  testatrix,  in  the  present  case,  showed,  that  when  she 
meant  to  give  an  absolute  interest,  she  did  so  in  express  terms,  of 
which  the  gift  of  the  diamond  ring  to  Lady  Douglas,  and  of  the  linen 
to  Mary  Monk,  are  proofs.  The  bequest  to  Mary  Monk  further 
manifested,  that  when  the  testatrix  intended  to  give  an  absolute  le- 
gacy, defeasible  upon  the  death  of  the  legatee,  before  her,  ste  decla- 
red such  her  intention ;  a  circumstance  which  raiged  a  strong  pre- 
sumption, that  if  her  meaning  had  been  the  same  in  relation  to  Lady 
Douglas,  she  would  "have  used  similar  words.  In  addition  to  these 

(r)  2  Yes.  jun.  501. 


412  Of  vested  Legacies  [Cn.  X. 

circumstances,  the  bequest  to  her  Ladyship  of  a  ring  was  unneces- 
sary and  inconsistent  with  an  intent  to  give  her  an  absolute  interest 
in  the  residue,  but  quite  consistent  with  an  intention  that  she  should 
take  the  residuary  property  for  life  only.  Those  reasons  induced 
Lord  Rosslyn  to  conclude,  that  the  testatrix  meant  the  children  to 
take  the  fund  after  the  death  of  their  mother,  whenever  it  should 
happen ;  a  conclusion  which  was  authorized  by  the  before  stated 
case  of  Billings  v.  Sandom,  and  by  no  means  contradictory  to  the 
cases  before  referred  to  in  relation  to  the  present  subject. 

Questions  have  arisen  upon  the  construction  of  limitations  over  of 
legacies  in  the  events  of  the  legatees'"  dying  unmarried"  or  "  with- 
out being  married,"  viz,  whether  the  expressions  were  meant  with- 
out ever  having  been  married,  or  without  being  under  coverture  when 
the  legatees  died.  If  the  first  interpretation  were  adopted,  then 
upon  the  marriages  of  the  legatees  the  limitations  over  would  be  de- 
feated ;  if  the  second  prevailed,  the  deaths  of  legatees  who  were  then 
unmarried  would  divest  their  interests,  and  give  effect  to  the  limita- 
tions over,  notwithstanding  the  previous  marriages  of  the  legatees 
which  had  determined  before  their  deaths.  It  is,  however,  settled  in 
instances  where  the  bequests  are  immediate,  and  of  the  entire  inte- 
rest in  the  fund,  to  the  legatees,  that  the  words  "  dying  unmarried" 
or  "  without  being  married,"  are  to  be  taken  in  the  sense  of  never 
having  been  married.  And  if  to  the  words  "  should  the  legatee  die 
unmarried,"  &,c.  be  added  "and  without  issue,"  or,  "  without  having 
issue,"  the  latter  words  will  be  construed  in  the  same  restrictive 
sense  as  the  former,  i.  e.  without  having  children  born ;  and  the  co- 
pulative and  will  be  changed  into  or,  so  that  if  the  legatee  marry 
and  have  a  child,  the  interest  which  originally  vested  in  the  legatee 
sub  modo  will  become  unqualified  and  absolute,  notwithstanding  he 
may  afterwards  die  a  widower,  and  leave  no  child.  But  if  he  die 
married  without  ever  having  had  a  child,  his  interest  will  be  divest- 
ed, and  the  limitation  over  take  place.  We  must,  however,  distin- 
guish between  cases  like  those  just  mentioned,  and  cases"  where  the 
interest  of  a  legacy  is  given  to  a  parent  for  life,  and  the  capital  to 
his  children  with  a  limitation  over  "  in  case  he  die  without  children." 
For  in  the  latter,  the  contingency  of  the  parent  dying  without  chil- 
dren, can  only  mean  without  children  at  the  time  of  his  death. (s) 
These  distinctions  will  appear  upon  considering — 

5.  The  construction  which  has  been  judicially  put  upon  the 
words  "dying  unmarried,"  or  "without  being  married  and  having 
children." 

In  Maberleyv.  Strode,(l}ihe  testator  gave  to  trustees  his  residuary 
estate,  in  trust  to  pay  the  interest  to  his  son  Samuel  Strode,  for 
life, .remainder,  as  to  the  capital,  to  divide  it  among  all  Samuel's 
children,  "  but  in  case  Samuel  died  unmarried  and  without  issue," 
or  having  issue,  the  sons  should  die  under  twenty-one,  and  the 
daughters  before  that  age  or  marriage,  then  in  trust  to  transfer  the 
fund  to  lys  nephews  and  nieces.  Samuel  married  and  died  without 
issue ;  and  one  of^the  questions  \yas,  whether,  as  Samuel  did  not  die 
unmarried,  the  limitation  over  was  not  disappointed,  and  an  intes- 
tacy created?  But  Lord  Mvanley  determined  in  the  negative,  de- 

(«)  7  Ves.  459.  (r)  3  Ves.  450.  454. 


SECT.  V.]          payable  out  of  Personal  Estate.  413 

daring  first,  that  the  word  "  unmarried"  is  to  be  understood  to  im- 
port as  never  having  been  married;  and  the  word  "  and"  to  be 
changed  for  "  or,"  so  as  to  make  a  double  contingency ;  conse- 
quently, although  Samuel  married,  yet, .  as  the  alternative  event 
happened,  i.  e.  his  death  without  leaving  a  child,  the  limitation  to 
the  nephews  and  nieces  took  place. 

The  reader  will  have  remarked,  that  according  to  the  distinction 
made  in  the  observations  prefatory  to  this  subdivision,  if  children 
had  been  born  to  Samuel,  and  all  of  them  had  died  before  him,  still 
the  limitation  over  would  have  taken  place;  for  nothing  was  given 
to  them  until  his  death ;  a  circumstance  explanatory  of  the  terms 
"  in  case  he  shall  die  without  issue,"  and  showing  that  they  were 
used  in  the  sense  of  his  death  without  leaving  issue. 

The  next  case  differs  from  the  preceding  in  this  respect :  that  the 
gift  was  immediate  to  the  legatees  of  the  residuary  estate,  with  an 
executory  bequest  over,  "  in  case  any  of  them  died  without  being 
married,  and  having  children." 

The  case  alluded  to  is  Bell  v.  Phyn,(u)  in  which  Mr.  Phyn  be- 
queathed the  residue  of  his  personal  estate  equally  among  his  three 
children,  George,  Jane  and  Catherine;  but  if  any  of  them  died 
"  without  being  married  and  having  children,"  the  share  of  such 
child  was  to  be  distributed  among  the  survivors.  After  the  death 
of  the  testator,  Jane  married,  and  having  a  child,  the  question  was, 
whether  she  took  an  absolute  vested  interest  in  a  third  part  of  the 
residue?  which  depended  upon  .the  construction  of  the  words 
"  without  being  married  and  having  children;"  for,  if  the  having 
children  was  to  be  considered  the  same  as  without  leaving  chil- 
dren, then  her  interest  would  .be  liable  to  be  devested  on  the 
happening  of  that  event.  But  Sir  William  Grant,  M.  R.,  construed 
the  words,  "  without  being,  married,"  in  the  sense  of  "  without 
ever  having  been  married,"  upon  the  authority  ofMaberky  v.  Strode; 
and  after  declaring  upon  the  like  authority  that  or  should  be  sub- 
stituted for  and,  he  pronounced  his  opinion  that  the  expressions, 
"  without  having  children/'  meant,  in  the  present  instance,  without 
having  had  a  child  or  children.  When  it  followed,  that  Jane  hav- 
ing married  and  had  a  child,  the  interest  which  vested  in  her  at  the 
jdeath  of  the  testatrix  became  absolute;  and  so  it  was  decreed. 

In  regard  to  construing  the  words,  "  without  having  children," 
the  same  as  without  leaving  children,  Sir  W.  Grant  expressed  him- 
self to  the  following  effect :  "  It  is  not  very  reasonable,  that  if  the 
testator's  children  shpuld  have  children  who  should  live  to  require 
an  expensive  education,  or  to  contract  marriage,  it  should  be  but 
of  the  parent's  power  to  touch  the  capital  for  either  of  those  pur- 
poses, on  account  of  the  possibility  that  the  children  might  die  in 
the  life  of  the  parent;  although  the  only  .consequence  of  surviving 
the-  parent  would  be,  not  that  the  children  would  take  any  thing, 
but  that  the  parent  might  dispose  of  the  whole  as  he  thought  fit. 
The  intention  was,  to  enable  the  parent  to  make  a  provision  for  the 
children,  which  might  be  in  the  life  of  the  parent,  as  well  as  after 
the  death ;  and  that  if  the  children  should  live  to  marry  and  have 

(u)  7  Ves.  454.  458.  . 
VOL.  i.  3  G 


414  Of  vested  Legacies  [Cn.  X. 

children,  then,  as  they  would  require  more  than  the  income,  the 
capital  was  to  be  at  their  disposal  ;  but  if  they  should  not  live  to 
marry  or  to  have  children,  it  was  to  go  oVer.  Such  was  the  most 
likely  construction. 

That  a  court  of  equity,  in  favour  of  vested  interests,  requires  the 
events,  which  were  to  divest  them,  to  happen  with  certainty  and  in 
strictness,  is  not  only  observable  in  the  preceding  cases,  but  will  also 
appear  from  considering  — 

6.  Further  instances,  where  events  upon  which  executory  limita- 
tions are  made  to  depend,  were  held  not  to  have  happened,  so  as  to 
divest  the  original  legacies. 

It  is  the  doctrine  of  Lord  Mvanley,  upon  this  subject,  that  <f  where 
there  are  clear  words  of  gift  creating  a  vested  interest,  the  Court  will 
never  permit  the  absolute  gift  to  be  defeated,  unless  it  be  perfectly 
clear  that  the  very  case  has  happened,  in  which  it  is  declared  that 
the  interest  shall  not  arise  ;  that  it  must  be  determined,  upon  the 
words  of  the  will,  there  was  a  vested  interest,  which  was  to  be  de- 
vested  only  upon  a  given  contingency  i  And  the  single  question 
was,  whether  the  contingency  had  happenedv?"(as) 

According  to  this  rule,  if  legacies  'be  given  to  A.  and  B.,  and  if 
either  die  during  the  life  of  D.,  then  to  the  survivor  living  at  D.'s 
death,  and  both  die  before  D.;  as  the  bequests  vested  in  Jl.  and  B. 
at  the  testator's  decease,  subject  to  a  contingency  which  did  not 
happen,  the  -interests  which  vested  conditionally  in  the  legatees, 
became  absolute  in  both  of  them  upon-  the  death  of  the  survivor  be- 
fore D.  This  instance  will  apply  to  others  of  a  similar  description, 
and  which  will  be  afterwards  noticed. 

In  Harrison  v.  Foreman,(y)  the  testator  gave  to  trustees  40Z.  a 
year,  part  of  566Z.  annuities,  in  trust  to  pay  the  dividends  to  Mrs. 
Barnes  for  life,  for  her  separate  use  ;  and  after  her  death,  upon  trust 
to  transfer  the  annuity,  or  the  security  upon  which  it  was  invested, 
to  Peter  and  Susannah  Stallard,  equally  ;  "  and  in  case  of  the  death 
of  either  of  them  before  Mrs.  Barnes,  he  gave  the  whole  to  the  sur- 
vivor living  at  her  decease."  Both  the  legatees  died  during  the  life 
of  Mrs.  Barnes.  The  question  was,  whether  their  legal  personal  re- 
presentatives, or  the  testator's  residuary  legatees,  were  entitled  to 
the  401.  annuities  ?  And  Lord  Jllvaniey,  M.  R.,  determined  in  fa- 
vour of  the  former,  upon  the  principle  that  Peter  and  Susannah  hav- 
ing taken  vested  interests  in  the  fund  at  the  death  of  the  testator, 
subject  to  be  devested  in  favour  of  the  survivor  who  might  be  living 
at  the  decease  of  the  tenant  for  life  ;  as  there.  was  no  such  survivor 
at  that  period,  the  de  vesting  .contingency  never  happened,  and  con- 
sequently the  interests  at  first  vested  remained  undisturbed,  which 
entitled  the  personal  representatives  of  the  two  legatees  to  the  pro- 
perty. 

So  in  Smitherv.  Willock,(z)  the  bequest  was  of  personal  property, 
and  the  produce  from  the  sale  of  real  estate,  to  the  testator's  wife 
for  life,  with  remainder,  as  to  the  capital,  after  her  decease  to  be  di- 
vided among  the  testator's  brothers  and  sisters  ;  but  if  any  of  them 
died  before  the  wife,  their  shares  were  to  be  distributed  among  their 


JT)  5  Ves.  209.  (y)  ibid  207. 

z)  9  Ves.  233.  see  also  IVhittell  v.  Dudin,  2  Jac.  &  Wqjt.  279. 


SECT.  V.]  payable  out  of  Personal  Estate.  415 

children.  One  of  the  brothers  died  during  the  life  of  the  wife  with- 
out ever  having  had  a  child.  And  Sir  W.  Grant,  M.  R.,  declared 
the  share  of  the  deceased  brother  to  be  vested,  subject  to  be  devest- 
ed  in  the  event  only  of  his  death  before  the  testator's  widow  leaving 
.children;  which  contingency  not  having  happened,  the  brother's 
personal  represen'tative.was  entitled. 

And  in  Wall  \.  Tomlinson,(a)  the  testator  gave  the  interest  of  his 
residuary  estate  to  his  wife  for  life,  and  the  capital,  after  her  death, 
to  her  children ;  but  if  she  had  none  (which  event  happened,)  then 
to  Mrs.  Strangeway  absolutely,  in  case  she  should  have  children  ;  in 
failure  of  which  the  property  was  given  over.  Mrs.  Strangeway  had 
only  one  child  born  alive,  and  which  died  before  her.  The  question 
was,  whether  the  interest  which  vested  in  that  lady  upon  the  birth  of 
her  child  was  absolute,  or  it  was  devested  upon  her  dying  without 
leaving  a  child,  which,  depended  upon  the  construction  of  the  am- 
biguous expressions,  "  in  failure  of  which."  And  Sir  W.  Grant  said, 
it  would  be  very  difficult  in  the  present  case  to  give  those  words  the 
construction  of  the  legatee  not  leaving  children  at  her  death  ;  a 
construction  which  would  lock  up  the  property  during  her  whole  life  ; 
and  that  the  testator  did  not  appear  to  have  contemplated  the  event, 
which  had  happened,  of  the  death  of  the  child  in  the  lifetime  of  its 
mother. 

Also  in  Browne  V.  Lord  Kenyon.(b)  1000Z.  were  bequeathed  to 
trustees  to  pay  the  interest  to  Abigail  Jones  for  life,  remainder  in 
trust  to  divide  the  interest  between  Miss  Chetwode  and  Mrs.  Davison 
during  their  joint  lives,  and  to  pay  the  whole  of  it  to  the  survivor  for 
life,  with  remainder  in  trust  after  the  survivor's  death  to  pay  the  capi- 
tal to  Sir  John  Chetwode  ;  but  if  he  were  then  dead,  to  divide  it  be- 
tween his  two  brothers,  Charles  and  Philip  Chetwode,  or  the  whole 
to  the  survivor.  Abigail  Jones  died  first,  then  Miss  Chetwode,  after- 
wards her  brother  Charles,  next  her  brother  Philip,  then  Sir  John 
Chetwode,  and  lastly,  Mrs.  Davison.  It  was  determined,  that  the 
legacy  vested  in  Charles  and  Philip  as  tenants  in  common,  subject 
to  be  devested  if  one  alone  should  survive  Mrs.  Davison,  the  last 
tenant  for  life ;  and  that  since  there  was  no  survivor  in  existence  at 
that  period,  both  brothers  having  died  before  her,  the  contingency 
upon  which  the  interest  was  to  be  devested  never  happened  ;  conse- 
quently, the  personal  representatives  of  each  brother  were  entitled  to 
the  fund. 

The  last  case  was  followed  by  that  of  Sturgess  v.  Pearson,(c)  in 
which  the  testator  gave  the  interest  of  one-fifth  part  of  personal  pro- 
perty to  his  daughter,  Jinn  Tatnall,  for  life,  and  the  capital,  after 
her  death,  to  be  divided  among  her  three  children,  or  such  of  them 
as  should  be  living  'at  her  decease,  payable  at  twenty-one.  The 
three  children  died  before  their  mother,  and  it  was  decided  that  the 
children  took  vested  interests,  which  were  only  to  be  divested  in  the 
event  of  there  being  some  or  one  of  them  living  at  the  mother's 
death,  an  event  which  did  not  happen ;  for  there  was  not  one  child 
in  existence  at  that  period,  the  necessary  consequence  of  which  was, 
that  the  personal  representatives  of  the  children  became  entitled  to 
the  legacy  upon  the  death  of  the  tenant  for  life.. 

(a)  16  Ves.  413.  (b)  3  Mad.  410.  see  also  Laffer  v  Edwards,  ibid.  210. 

(c)  4  Madd.  411. 


416  Of  vested  Legacies  [Cn.  X. 

So  also,  if  there  be  several  infant  legatees  of  the  same  fund,  as 
tenants  in  common,  with  a  direction  for  payment  of  their  shares  at 
twenty-one,  but  if  all  of  them  die  under  that  age  without  leaving 
issue,  then  to  C.  Although  one  or  more  of  them  die  under  twenty- 
one  without  issue,  yet,  if  another  afterwards  attain  that  age,  the  per- 
sonal representatives  of 'the  deceased  children  will  be  entitled  to 
their  shares ;  and  for  the  following  reasons :  The  shares  are  so 
given  as  to  vest  immediately  in  all  the  legatees,  subject  to  be  de- 
vested  in  the  event  of  all  of  them  dying  before  twenty-one  without 
issue  ;  and  since  the  contingency  upon  which  those  interests  were 
to  be  devested  did  not  happen,  as  one  child  attained  that  age,  they 
continued  vested  ;  therefore,  upon  the  authorities  we  have  been  con- 
sidering, the  personal  representatives  of  the  deceased  children 
will  be  entitled  to  their  proportions  of  the  fund.(d) 

Upon  the  same  principle,  if  a  legacy  be  given  to  a  person  abso- 
lutely, and  a  mere  discretionary  authority  is  intrusted  to  two  or  more 
executors  to  qualify  the  bequest,  and  reduce  it  to  an  estate  for  life, 
with  remainders  over;  if  by  any -means  the  authority  become  in- 
capable of  execution,  the  entire  interest  which  originally  vested  in 
the  legatee,  will  become  absolute. 

Thus  in  Keates  v.  Burton,(e)  Mr.  Burton  bequeathed  2000Z.  to  his 
natural  son,  James  Christie  ;  "  but  if  his  executors  should  think  it 
more  for  the  advantage  of  James  to  have  20001.  placed  at  interest, 
and  to  pay  him  interest  for  life,  as  it  became  due,  or  otherwise  in  such 
proportions,  and  at  such  timeSj  manner,  and  form  as  they  in  their  dis- 
cretion should  think  fit,  they  were  authorized  and  empowered  to  place 
the  money  at  interest,  as  therein  mentioned,  in  their  joint  names,  or 
in  the  names  of  the  survivors,  and  directed  to  pay  him  the  interest  in 
manner  aforesaid  during  his  life,"  with  limitations  over.  There  were 
four  executors,  one  of  whom  died  before  the  testator,  and  the  others 
renounced  probate.  Under  these  circumstances  the  joint  authority 
having  become  incapable  of  execution,  the  question  was,  whether 
James  was  entitled  for  life  only,  or  took  a  vested  absolute  interest 
in  the  legacy,  liable  to  be  devested  by  the  exercise  of  the  power 
delegated  to  the  executors  jointly  ?  for  if  the  latter,  then,  since  the 
event  upon  which  the  devesting  was  to  take  place  could  never  hap- 
pen, the  assignees  of  the  Legatee  under  an  insolvent  act  would  be 
entitled  to  the  money.  And  Sir  W.  Grant,  M.  R.  decided  the  fol- 
lowing points  :  1st,  that  this  was  a  mere  personal  discretionary  au- 
thority to  the  executors ;  which,  if  not  exercised,  a  court  of  equity 
could  not  execute  :  2d,  that  the  gift  by  will  was  of  the  -entire  pro- 
perty, subject  to  be  divested  upon  execution  of  the  power  :  and 
lastly,  that  the  power  being  extinct,  the  interest  of  the  legatee  be- 
came absolute,  as  the  event  could  not  happen,  upon  which  it  was 
to  be  divested.  His  assignee  therefore  had  made  out  a  good  title. 

It  is  observable  in  the  before  stated  cases  of  Harrison  v.  Foreman, 
Browne  v.  Lord  Kenyan,  and  Sturgess  v.  Pearson,(f)  that  the  limi- 
tations to  the  sarviving  legatees,  were  to  such  only  as  should  be 
living  at  the  deaths  of  the  tenants  for  life.  As.,  therefore,  none  of 
them  were  in  existence  at  those  periods,  the  contingencies  divesting 

See  Sfcey  v.  Barnes,  3  Meriv.  335.  340.  (e)  14  Ves.  434. 

Ante,  p.  414.  et  seq. 


SECT.  V.]  payable  out  of  Personal  Estate.  417 

the  bequests,  made  to  them  generally,  never  happened ;  consequent- 
ly, the  interests,  which  originally  vested  in  all  the  legatees,  remained 
undisturbed,  a  circumstance  that  entitled  their  representatives  to  the 
legacies.  But  this  is  otherwise,  when  surviving  legatees  are  not  re- 
quired to  be  in  esse  at  the  death  of  the  "tenant  for  life.  If,  then,  the 
legacy  be  limited  "to  A.  for  life,  and  after  his  death  to  his  two  children, 
B.  and  G'.,  in  equal  shares,  but  should  either  of  them  die  before  A., 
then  to  the  -survivor;  although  B.  and  C.  die.  during  the  'life  of  ./?., 
yet  C.,  if  he  survive  B.,  will  be  entitled  to  the  whole;  because  the 
interest  of  B.  was  devested  by  his  death  before  C.  and  became  vest- 
ed in  the  latter  according  to  the  limitation  in  the  will,  C.  not  b^eing 
required  to  be  living  at  the  death  of  .#.',  the  tenant  for  life,  as  in  the 
preceding  cases;  authorities  reconciled  by  this  distinction  with  those 
of  Scurfield  v.  Howes,  and  Barnes  v.  Allen,  before  stated. (g) 

Questions  indeed  have  arisen  upon  the;  expressions  of  wills,  in  re- 
ference to  the  event  upon  which  the  limitation  over  was  meant  to 
take  place;  viz.  whether  upon  the  sole  contingency  of  the  legatee 
dying  under  twenty-one,  or  upon  his  death,  during  the  life  of  a  per- 
son to  whom  the  fund  was  given  for  life,  notwithstanding  he  had  at- 
tained that  age.  We  shall  therefore,  consider, — 

7.  The  construction  of  the  words,  "payable,  &c."  in  reference  to 
the  event  introducing  a  limitation  over  of  legacies  or  portions  if  any 
of  the  legatees  die  before  their  shares  become  payable,  or  payable, 
assignable,  and  transferrible. 

FIRST.— Of  legacies. 

The  term  "payable"  is.  of  ambiguous  import,  and  is  capable  of 
being  referred  either  to  the  period  when  the  legacy  is  to  vest  in  in- 
terest, or  to  the  time  when  it  becomes  due/  The  determination  in 
these  instances  depends  upon  a  sound  interpretation  of  the  will. 
In  the  following  case  the  word  "  payable"  was  referred  to  the  time 
of  vesting,  viz.  twenty-one,  and  not  to  the  period  of  the  legacy  be- 
coming actually  due. 

The  case  is  Hallifax  v.  Wilson,(h]  in  which  Mr.  Hodgson  be- 
queathed the  residue  of  his  estate  to  trustees,  upon  trust  to  pay  the 
interest  of  it  to  his  mother,  Rebecca,  for  life,  and  from  and  imme- 
diately-after her  death,  to  pay  and  transfer  the  trust  fund  among  his 
nephew  and  nieces,  Barbara,  Thomas,  and  Margaret,  equally;  the 
shares  with  the  accumulating  interest  to  be  paid  or  transferred  at 
twenty-one  ;  but,  if  any  of  the  legatees  died  before  their  shares  be- 
came payable,  such  shares  were  to  be  equally  divided  among  the 
survivors  or  survivor,  &c.  Thomas,  one  of  the  legatees,  attained 
twenty-one,  but  died  before  Rebecca,  the  tenant  for  life ;  and  the 
question  was,  whether  the  vested  interest  that  he  took  in  his  share  at 
twenty-one,  was  devested  by-  his  death  before  Rebecca'?  which  de- 
pended upon  the  period  to  which  the  word  "  payable"  was  to  be 
referred.  Sir  W.  Grant  decided  in  favour  of  the  personal  repre- 
sentative of  Thomas ;  observing,  that  the  bequest  over  being  imme- 
diately connected  with  the  direction  for  payment  at  twenty-one,  the 
natural  reference  of  the  words  "if  any  of  the  legatees  die  before  their 
shares  become  payable,"  was  to  their  death  under  twenty-one. 

If  such  be  the  construction  upon  kgacies,  a  fortiori  it  must  equal- 

C§0  Sufira,  pp.  394  &  402.  (A)  16  Ves.  168. 


418  Of  vested  Legacies  [Cii.  X. 

ly  prevail  where  the  objects  are  children  claiming  portions  from  a 
parent.  The  following  distinction  must  be  attended  to;  that,  if  to  the 
term  "payable,". other  expressions  be  added,  fairly  importing  the 
intention  of  a  testator  to  divest  the  interests  previously  given  upon 
the  death  of  any  of  the  legatees  before  the  tenant  for  life,  and  not 
merely  in  the  event  of  any  of  them  dying  under  twenty-one,  the  in- 
terests will  be  divested  accordingly;  as  in  the  instance  of  a  limita- 
tion over  upon  the  death  of  any  of  the  legatees  before  their  shares 
become  payable,  assignable,  or  transferrible.  But  if  the  bequest  be 
not  mere  bounty,  as  when  the  objects  are  children  claiming  portions 
payable  at  twenty-one,  tlieir  parents  having  life-interest  in  the  fund ; 
those  words  will  generally  be  construed  to  mean  such  children  only 
as  shall  die  under  twenty-one,  so  as  to  divest  the  interests  of  those 
who  attain  that  age,  although  they  happen  to  die  before  tlieir  pa- 
rents. The-  reason  of  this  distinction  will  appear  in  considering — 

SECOND.  The  construction  of  the  words  "payable,  assignable,  and 
transferrible,"  used  in  the  limitations  over  of  portions,  when  the 
parent  has  a  life-interest,  and  the  portions  are  directed  to  be  paid  at 
twenty-one. 

It  is  a  rule,  that  a  child  who  has  attained  twenty-one,  or  married, 
is  primd  facie  to  be  considered  entitled  to  a  portion  provided  for 
children,  upon  the  ground  that  an  intention  is  not  to  be  imputed  to 
a  fathec  to  leave  his  child,  having  occasion  for  a  fortune,  without 
one.  And,  to  form  an  exception  to  the  rule,  it  must  be  shown,  from 
the  tenor  and  words  of  the  will  or  settlement,  that  the  child  was  not 
meant  to  have  the  provision  at  that  age  ;  .an  intention  that  must  not 
be  doubtful,  but  clear. (i)  There  must  be  something  in  the  instru- 
ment utterly  incompatible  with  giving  the  portion  at  twenty-one.  If, 
then,  the  terms  of  the  instrument  be  ambiguous,  or  if  there  be  con- 
flicting or  contradictory  clauses,  so  as  to  leave  in  a  degree  uncertain 
the  period  at,  or  the  contingency  upon  which,  the  portion  is  to  vest 
or  be  devested,  it  is  the  inclination  of  a  court  of  equity  to  vest  the  mo- 
ney in  sons  at  twenty-one,  and  in  daughters  at  that  age,  or  marriage. (&) 
Hence  it  follows,  that  if  the  portion  be  given  over  in  language  which 
is  capable  of  being  referred  either  to  the  death  of  children  before 
twenty-one,  or  during  the  lives  of  their  parents;  the  expressions  will 
be  restricted  to  the  period  of  vesting,  i.  e.  in  the  event  of  death  un- 
der twenty-one  ;  for  a  court  of  equity  considers  •  that  it  would  be 
very  unreasonable  to  suppose  a  father  to  mean  that  his  child  hav- 
ing attained  twenty-one,  or  married,  and  founded  a  family,  should, 
not  take  its  portion,  because  it  happened  to  die  before  him.  Upon 
such  argument,  the  Court  interprets  the  words  of  the  will  or  settle- 
ment by  what  is  fairly  presumed  to  be  the  intention  of  the  father, 
considering  the  relation  of  the  parties  ;  and  in  doing  so,  it  uses 
greater  latitude  than  in  questions  of  this  kind  between  strangers, 
or  upon  a  contract,  where  there  is  no  ingredient  of  parental  feel- 
ing.^) 

Suppose,  then,  a  bequest  or  settlement  (for  it  is  immaterial  which) 
(wi)  to  be  made  in  trust  for  A.,  the  wife,  for  life,  and  after  her 
death  for  her  children  by  the  testator  or  senior;  equally ;  to  be  paid 

(i)  See  Bernard  v.  Montague,  ante,  380.  (fr)  3  Ves.  &  Bea.  85.  91. 

(/)  6  Ves.  507.  (m)  16  Ves.  172. 


SECT.  V.]  payable  out  of  Personal  Estate.  419 

to  sons  at  twenty-one,  and  to  daughters  at  that  age  or  marriage, 
except  those  events  happen  during  the  life  of  A.,  and  then  the  pay- 
ment to  be  postponed  till  ASs  decease  ;  but  if  any .  of  the  children 
die  before  their  portions  or  shares  become  payable,  assignable  or 
transferrible  such  shares  to  go  to  the  survivors  in  the  same  manner 
as  their  original  portions  ;  and  if  all  of  them  die  be  fore. their  por- 
tions or  shares  become  payable,  &c.  then  to  B.  Now  whether  the 
words  "  payable,"  &c.  were  intended  to  refer  only  to  children 
dying  under  twenty-one,  without  regard  to  the  death  of  .#.,  is  by 
no  means  clear  ;  consequently,  a  court  of  equity  will,  according 
to  the  observations  before  made,  consider  the  expressions  "  paya- 
ble," &c.  as  relating  merely  to  the  age  of  twenty-one, 'or  marriage, 
so  that  if  a  son  attain  twenty-one,  or  a  daughter  attain  .that  age  or 
marry,  they  will  take  an  indefeasible  vested  interest  in  their  por- 
tions or  shares,  transmissible  to  personal  representatives,  although 
they  happen  to  die  before  A.  It  is  conceived  that  the  following 
case  establishes,  the  preceding  remarks. 

In  Jefferies  v.  Reynolds, (n]  Exchequer  annuities  were  settled 
upon  husband  and  wife  for  their  lives,  and  after  their  deaths  for  the 
children  of  the  marriage,  in  equal  shares,  to  be  assigned  and  made 
over  to  them  at  their  ages  of  twenty-one  happening  after  the  death 
of  the  surviving  parent;  but  if  any  of  them  attained  twenty-one 
during  the  lives  of  their  parents,  their  shares  were  to  be  paid, 
assigned  and  made  over,  within  three  months  after  the  death  of  the 
survivor  of  the  parents,  unless  sooner  directed.  And  survivorship 
among  the  children  was  provided,  if  any  of  them  died  before  their 
shares  became  payable,  assignable,  or  transferrible.  It  was  also 
declared,  that  if  there  should  be  no  child,  or  there  being  children, 
if  all  of  them  died  before  any  of  their  shares  became  payable,,  as- 
signable, or  transferrible,  as  aforesaid,  the  annuities  should  go  to 
the  parents,  and  the  survivor  of  them.  There  was  only  one  child, 
a  son,  who  attained  twenty-one,  but  died  before  his  mother,  who 
survived  her  husband.  And  it  was  determined,  first  at  the  Rolls, 
afterwards  by  Lord  JVorthington,  Ch.,  and  ultimately  by  the  House 
of  Lords,  that  the  son's  executor,  and  not  the  mother's,  was  enti- 
tled to  the  fund. 

The  comments  of  Sir  W.  Grant  upon  the  last  authority,  in 
ScJienck  v.  Legh,(o)  were,  that  it  was  a  stronger  case  against  the 
child  than  the  latter  ;  for,  said  he,  "  the  first  declaration  in  Jefferies 
v.  Reynous,  as  to  payment  at  twenty-one,  has  the  qualification  of 
happening  after  the  death  of  the  father  and  mother,  and  the  ques- 
tion was  not  upon  the  survivorship  between  the  children,  but  upon  the 
limitation  over  to  the  parents  ;  as  against  whom  it  could  not  be  said 
to  be  transferrible  till  after  the  death  of  the  survivor."  The  cases 
mentioned  in  notc(p)  apply  to  the  present  subject,  and  may  be 
consulted  with  advantage. 

The  next  subject  for  consideration  is —    . 

(n)  Stated  9  Ves.  311.     6  Bro.  Parl.  Ca.  398.  8vo.  ed.  (o)  9  Ves.  311. 

(  //)  Emfieror  v.  Rolfe,  1  Ves.  sen.  208.  Randall  v.  Metcalfe,  3  Bro.  Parl.  Ca. 
318.  8vo.  ed.  Willis  v.  Willis,  3  Ves.  51.  Hofie  y.  Lord  Clifden,  6  Ves.  499. 
Schenckv.  Legh,  9  Ves.  300.  Potvisv.  Burdett,  ibid.  428.  Bayard  v.  Smith,  14 
Ves.  470.  Walker  v.  Main,  1  Jac.  &  Walk.  1.  8.  Hoivgrave  v.  Cartier,  3  Ves. 
&  Bea.  79.  Perfect  v.  Lord  Curzon,  5  Madd.  442.  Maitland  v.  Chalie,  6  ib.  243. 


420  Of  vested  Legacies  [Cn.  X. 

SECT.  VI.  The  effect  of  powers  of  appointment  upon  the 
vesting  and  devesting  of  Legacies  or  Portions. 

1.  Where  the  power  is  merely  to  ascertain  the  shares  each  lega- 
tee is  to  take. 

When  the  will  creating  the  power  provides  legacies  or  portions 
for  a  class  of  persons  in  common,  to  be  enjoyed  after-  the  death  of 
an  individual,  and  simply  authorizes  that  person  to  fix  the  amount 
of  each  legatee's  proportion  ;  the  shares  will  vest  in  interest  in  such 
of  them  as  are  alive  at  the  death  of  the  testator,  and  in'others  an- 
swering the  description,  as  they  come  into  esse,  during  the  life  of 
the  donee  of.  the  power,  subject  only  to  be  devested,  so  far  as  re- 
gards the  amounts  of  the  shares,  by  an  exercise  of  the  power,  pro- 
vided all  the  legatees  survive  the  donee  of  the  power  ;  for  if  any  of 
them  die  during  the' donees'  life,  and  before  he  have  executed  the 
power,  the  interest  which  vested  in  the  deceased  legatee  will  be 
devested  if  the  donee  appoint  (as  he  mayj  the  whole  fund  among 
the  survivors,  which  was  decided  by  Lord  Thurlow  in  Boyle  v. 
The  Bishop  of  Peterborough  ;(q)  a  case  acknowleged  by  Lord  El- 
don  in  Butcher  v.  Butcher, (r)  and  by  Sir  Thomas  Plumer,  who  de- 
cided the  case  of  M'Ghie  v.  M(Ghie,(s]  upon  the  authority  of  the 
first.  But  if  the  donee  of  the  power  die  without  executing  it,  or 
make  an  invalid  appointment  of  the  whole  fund,  then,  as  the  interest 
which  vested  in  the  deceased  legatee  was  never  devested,  his  per- 
sonal representative,  after  the  death  of  the  donee,  will  be  entitled 
to  an  equal  share  of  the  property  with  the  other  legatees.  And  if 
part  of  the  fund  only  be  effectually  appointed,  the  remainder  of  it 
will  be  divisible  among  the  surviving  legatees,  and  the  personal 
representative  of  the  one  deceased,  in  respect  of  the  vested  interests 
that  all  the  legatees  took  in  the  whole  property,  subject  to  the  power 
of  appointment ;  which,  as  to  that  residue,  is  to  be  considered  as 
never  having  been  made.  The  following  authorities  will  clearly 
illustrate  the  above  remarks : 

In  Malim  v.  Keighley,  and  Malim  v.  Barker,(t]  the  bequest  was, 
that  if  the  whole  of  the  testator's  residuary  personal  estate  became 
vested  in  any  one  of  his  three  daughters  under  the  trusts  previously 
declared,  he  gave  it  to  her,  with  a  recommendation. to  dispose  of  it, 
after  her  death,  among  the  children  of  his  daughter  Ann  Malim,  and 
of  his  nephew  John  Lowe.  The  residue  became  vested  in  his  daugh- 
ter Sarah,  who  died  without  issue  and  intestate,  having  made  no 
such  disposition  as  desired  by  the  will.  The  direction  was  determined 
to  be  a  trust  in  favour  of  the  children  of  Jinn  and  John,  among  all  of 
whom,  as  well  those  living  at  the  testator's  death,  as  those  afterwards 
born,  the  appointment  must  have  been  made,  had  the  power  been 
executed.  And  Lord  Mvanley  said,  that  every  child  which  came  in 
esse  acquired  a  vested  interest,  liable  to  be  devested  by  the  exercise 
of  the  power  of  appointment ;  and  there  being  no  appointment,  he 
must  construe  it  as  if  there  was  no  power ;  and  it  had  been  frequent- 

fy)  1  Ves.  jun.  299.     3  Bro.  C.  C.  243.  5.  C.  (r)  1  Ves.  &  Bea.  90. 

(«)  2  Madd.  378.      Vane  v.  Lord  Dun^annon,  2  Scho.  &  Lefroy,  118.  129. 

(t)  2  Ves.  jun.  333.  506.  and  3  Ves.  150.  and  see  Witts  v.  Boddington,  3  Bro. 
C.  C.  95.  ed,  by  Belt,  also  Robinson  v.  Smith,  6  Mad.  194.  stated  infra,  Chap. 
XXI.  on  Construction,  sect.  6.  div.  2,  sub-div.  1. 


SECT.  VI.]  payable  out  of  Personal  Estate.  421 

ly  determined,  that  in  such  a  case  all  children  coming  into  esse  should 
take.  In  the  present  instance,  some  of  the  children  having  died  be- 
tween the  death  of  the  testator  arid  the  donee  of  the  power,  his 
Lordship  declared  that  their  personal  representatives  were  entitled 
to  their  shares. 

The  last  case  was  followed  by  that  of  Bristow  \.  Warde,(u]  in 
which  it  was  agreed,  by  articles  upon  the  marriage  of  Mr.  and  Mrs. 
Bristow,  th&t  a  sum  of  money  should  be  invested  in  South  Sea  an- 
nuities, in  trust  to  pay  the  dividends  of  part  of  it  to  a  Mrs.  Foissin 
for  life,  and  the  remaining  dividends  to  Mr.  Bristow  during  the  lives 
of  himself  and  wife  ;  and,  if  he  died  before  her,  leaving  issue  of  the 
marriage,  in  trust  to  pay  the  dividends  (subject  to  the  trust  for  Mrs. 
Foissin)  to  Mrs.  Bristow  for  life,  and  after  her  death,  to  apply  the 
capital  in  such  manner  as  Mr.  Bristow  should  by  deed  or  will  ap- 
point ;  and  in  default  of  appointment,  to  be  equally  divided,  after 
Mrs.  Bristow 's  death,  among  the  issue  of  the  marriage,  at  their  ages 
of  twenty-one ;  the  intermediate  dividends  to  be  applied  for  their 
maintenance,  with  benefit  of  survivorship  upon  the  death  of  any  of 
them  under  twenty-one.  Mr.  Bristow  died  before  his  wife,  leaving 
several  children;  and.  he  by  will  appointed  the  fund  among  them, 
and  in  some  instances  to  grandchildren,  after  limiting  interests  for 
life  to  their  parents ;  and  to  one  daughter,  Catherine,  he  had  by 
deed  appointed,  on  her  marriage,  part  of  the  fund,  which  he  increas- 
ed by  the  will.  Under  these  circumstances,' Lord  Rosslyn  decided 
the  following  points:  1st,  that  the  power  of  appointing  was  not 
indefinite,  as  it  purported  to  be,  but  was  to  be  considered  as  confin- 
ed to  children ;  in  which  sense  also  the  word  "  issue"  was  to  be 
taken ;  2d,  that  in  consequence,  the  appointment  to  grandchildren 
was  void,  but  good  so  far  as  it  limited  interests  for  life  to  their  pa- 
rents ;  3d,  that  the  defective  execution  of  the  power  in  part  did  not 
avoid  the  appointment  in  toto ;  4th,  that  so  much  of  the  fund  as  was 
ineffectually  appointed  vested  in  all  the  children  living  at  the  death 
of  the  father,  the  appointor.  And  lastly,  that  although  the  power 
was  executed  at  different  times,  and  not  by  one  single  act,  and  in 
one  instance  in  augmenting  the  proportion  of  a  child,  yet  those 
several  appointments  were  valid. (x) 

Shortly  after  this  case  was  determined,  Lord  Mvanley,  M.  R., 
decided  that  of  Wilson  v.  Pigott,(y)  which  bore  a  near  resem- 
blance to  it,  and  received  a  similar  decision. 

In  that  case,  4000Z.  were  vested  in  trustees  of 'a  marriage  settle- 
ment, to  pay  the  interest,  subject  to  an  annuity  to  B.,  to  the  hus- 
band during  his  life;  then  to  his  wife  for  life,  remainder  as  to  the 
capital,  in  trust  equally  to  divide  it  among  all  the  children  of  the 
marriage,  except  an  eldest  or  only  son,  at  such  times  and  in  such 
proportions  as  their  parents,  or  the  survivor,  should  by  deed  or  will 
appoint;  and  in  default  of  appointment,  among  such  children  (ex- 
cept as  aforesaid)  equally,  and  to  pay  the  whole  to  one  child,  if  there 
should  be  one  only  ;  to  be  paid  to  daughters  at  twenty-one  or  mar- 
riage, and  to  sons  at  that  age,  if  their  parents  and  the  annuitant 
should  be  then  dead  ;  if  not,  immediately  after  the  death  of  the.sur- 
vivor ;  with  benefit  of  survivorship  among  them,  upon  the  death  of 

(«)  2  Ves,  jun.  336.  (x)  See  2  Ves.  sen.  62.  (y)  2  Ves.  jun.  351. 

VOL.  i.  3  H 


422  Of  vested  Legacies  [Cn.  X. 

any  of  the  sons  before  twenty-one,  and  of  the  daughters  before  that 
age  or  marriage ;  the  accrued  shares  to  be  paid  at  the  same  periods 
as  the  original ;  and  the  intermediate  interest  was  to  be  applied  for 
maintenance  ;  but  if  there  was  ah  only,  or  only  surviving  son,  he  was 
to  receive  the  4000/.  at  twenty-one,  and  the  intermediate  interest 
for  his  support.  And  if  there  were  no  issue,  or  all  of  them  died  be- 
fore the  fund  became  payable,  it  was  given  to  the  survivor  of  the 
husband  and  wife.  There  were  four  younger  children,*two  sons  and 
two  daughters  ;  and  upon  the  marriages  of  the  two  daughters  and  one 
of  the  sons,  the  father  appointed  1000J.  of  the  4000Z.  to  each  of 
them,  but  made  no  appointment  of  the  remaining  10001.  His  young- 
er son,  named  Charles,  never  having  been  married,  no  appointment 
was  made  in  his  favour,  and  he  died,  after  attaining  twenty-one,  be- 
fore his  father.  Under  these  circumstances,  the  following  points 
were  determined  :  1st,  that  the  appointments  made  at  several  times, 
as  in  the  last  case,  were  good  ;  2d,  that  so  much  of  the  fund  as  was 
not  appointed,  being  an  immediate  vested  interest  in  all  the  children 
as  they  came  in- esse, '-was  divisible  among  the  three  surviving  chil- 
dren and  the  personal  representative  of  Charles,  there  being  nothing 
either  in  the  settlement  or  the  appointments  to  the  three  children, 
which  could  authorize  the  Court  to  give  the  whole  of  the  1000Z.  to 
his  representative. 

The  other  cases  referred  to  in  note(z)  concur  with  those  before 
stated  in  establishing  the  proposition,  that,  where  by  will  or  settle- 
ment legacies  or  portions  are  directly  given  to  a  class  of  individuals 
generally,  subject  to  powers  of  appointing  the  property  among  them, 
the  interests  in  it  will  immediately  vest  in  the  persons  answering  the 
description  as  they  come  in  esse,  during  the  life  of  the  appointor ; 
so  that,  if  no  appointment,  or  only  an  imperfect  or  invalid  one  be 
made,  of  the  whole  or  part  of  the  fund,  it,  or  so  much  of  it  as  is  not 
effectually  appointed,  will  belong  to  the  legatees  or  donees  living  at 
the  death  of  the  donee  of  the  power,  and  to  the  personal  represen- 
tatives of  those  who  happen  to  be  then  dead.  And  the  cases  of 
Boyle  v.  The  Bishop  of  Peterborough,  Butcher  v.  Butcher,  and 
M'Ghie  v.  M'Ghie,  referred  to  in  the  beginning  of  this  section,  prove 
that  the  interests,  are  not  so  indefeasibly  vested,  but  that  the  shares 
of  legatees  or  donees  dying  before  the  donee  of  the  power,  may  be 
appointed  as  parts  of  the  entire  fund  among  the  surviving  legatees 
or  donees. 

It  must  be  noticed  that  Lord  Rosslyn,  made  a  decision  irrecon- 
cileable  with  the  authorities  before  stated  and  referred  to,  so  far  as 
regards  the  equal  distribution  among  the  legatees  or  donees  of  so 
much  of  the  fund  as  should  be  either  not  effectually  appointed  or 
not  appointed  at  all.  The  case  alluded  to  is  fteade  v.  Reade,(d) 
which  the  reader  will  consult.  In  allusion  to  it  Lord  Eldon  made 
the  following  remarks  :  "  Lord  Loughborough  (Rosslyn),  appears  in 
Readev.  Readeto  have  disturbed  that  doctrine  ( just  stated),  giving 
the  unappointed  fourth  (three  having  been  appointed  among  three 

(r)  Gordon  v.  Levi,  Ambl.  364.  Doe  v.  Martin,  4  Term.  Rep.  39.  64.  Smith 
v.  Camelforci,  2  Ves.  jun.  698.  Vanderzee  v.  Adorn,  4  Ves.  771.  Butcher  v. 
Butcher,  9  Ves.  382.  1  Ves.  &  Bea.  79.  99.  5.  C.  1  Scho.  &  Lefroy,  293.  Vane 
v.  Lord  Dungannon,  2  Scho,  8c  Lefroy,  118.  («)  5  Ves.  744. 


SECT.  VI.]  payable  out  of  Personal  Estate.  423 

of  four  children  which,  according  to  that  old  course,  would  have 
been  divided  among  the  four] ;  to  the  representatives  of  the  deceas- 
ed child.  I  do  not  perfectly  understand  that  case  which  is  quite 
novel  in  this  respect."(6) 

It  is  observable  that  the  cases  which  have  been  stated,  and  re- 
ferred to  are  instances  where  from  the  terms  of  the  instruments  the 
funds  were  immediately  given  to  the  legatees  or  donees  subject  to 
powers  delegated  to  individuals  to  alter  and  fix  the  amounts  of  the 
shares  by  the  exercise  of  a  sound  discretion.  There  was  no  event, 
upon  which  the  interests  that  had  vested  in  the  several  donees  or 
legatees  were  to  be  totally  devested  upon  the  execution  of  the 
power,  except  the  death  of  any  of  them  before  the  appointor,  and  the 
appointment  being  made  to  the  survivors,  and  comprehending  the 
whole  fund.  If,  however,  there  be  no  such  immediate  gift,  the  power 
authorizing  a  selection  of  the  objects,  and  the  title  of  the  individuals 
to  take  is  made  to  arise  and  entirely  depend  upon  the  execution  of 
the  power,  and  there  is  no  limitation  to  any  of  them  in  default  of 
appointment,  the  legacies  or  portions. will  necessarily  be  contingent 
until  the  donee  of  the  power  shall  have  exercised  it ;  as  will  appear 
from  considering — 

2.  In  what  cases  the  vesting  of  legacies  or  portions  depends  upon 
the  execution  of  powers  of  appointment. 

Suppose  the  interest  of  a  sum  of  money  to  be  bequeathed  to  or 
settled  upon  A.  for  life,  remainder  in  trust  of  the  capital  for  such  of 
the  children  of  A.  as  he  should  appoint ;  and  no  disposition  of  the 
fund  is  made  in  default  of  appointment.  It  is  presumed  that  no 
child  can  take  a  vested  interest  previously  to  appointment  by  Jl. ; 
because,  until  the  power  be  executed,  the  objects  of  the  bequest  or 
settlement  are  uncertain ;  no  particular  individuals  of  the  descript 
class  can  make  out  a  title  under  the  original  instrument;  or  accord- 
ing to  the  expressions  of  Lord  Hardwicke,  "  there  is  no  designation 
to  take  under  the  will,  but  such  of  the  children  as  A.  should  appoint ; 
and  no  person  can  be  ascertained  under  the  will,  until  A.  has  made 
such  appointment. (c) 

Accordingly  in  the  Duke  of  Marlborough  v.  Lord  Godolphin,(d) 
Charles  Earlof  Sunderland,  bequeathed  by  will  and  codicil  30,000/. 
to  his  wife  for  life,  and  after  her  death  to  be  divided  and  distributed 
to  and  among  such  of  his  children,  and  in  such  manner  and  propor- 
tion as  she  should  appoint,  and  for  no  other  purpose.  The  Countess 
executed  her  power  by  deed  and  will,  as  she  was  enabled  to  do;  and 
by  the  latter  instrument  she  appointed  to  two  of  the  children,  John 
Spencer  and  Lady  Morpeth  17,OOOL  of  the  trust-fund.  These  two 
children  died  before  her,  and  consequently  their  shares  became 
lapsed  ;  and  to  whom  they  belonged  was  the  question '?  On  the  one 
hand,  they  were  claimed  by  the  representatives  of  the  testator's  re- 
siduary legatee,  and  on  the  other  they  were  claimed  by  the  repre- 
sentatives of  John  Spencer  and  Lady  Morpeth,  as  having  vested  in 
those  two  persons  under  the  testamentary  appointment ;  or,  if  n'ot  so 
entitled,  then  the  money  was  claimed  by  the  surviving  children  and 
the  personal  representatives  of  those  who  were  dead^  on  the  alleged 
ground  that  all  the  childftn,  who  outlived  the  testator,  took  vested 

(6)  1  Ves.  8c  Bea.  92.'  (c)  2  Ves.  sen.  74. 

(d)  Ibid.  61.  74.  81.  see  also  p.  208.  of  the  same  bcnk,  and  Ambl.  365. 


424  Of  vested  Legacies.  [Cn,  X. 

interests  in  the  whole  property  under  his  codicil,  subject  onlyto  be 
devest'ed  as  to  the  proportions  by  the  exercise  of  the  power  by  the 
Countess;  the  execution  of  wh'ich  having  failed  in  part  by  the  death 
of  John  Spencer  and  Lady  Morpeth,  before  the  Countess,  the  ap- 
pointor, the  17,0001.  were  distributable  in  the  same  manner  as  if  no 
appointment  had  been  made,  viz.  among  surviving  children  and  the 
representatives  of  those  that  were  dead.  But  Lord  Hardwicke  de- 
termined in  favour  of  the  representative  of  the  testator's  residuary 
legatee,  and  he  disposed  of  the  other  claims  as  follows:  With  re- 
spect to  the  title  of  the  representatives  of  John  Spencer  and  Lady 
Moiyeth,  under  the  testamentary  appointment ;  he  declared  it  to  be 
without  foundation,  for  the  reasons  stated  in  a  preceding  chapter 
which  treats  of  "  lapsed  legacies. "(e)  And  in  regard  to  the  claims 
of  the  surviving  children,  and  the  representatives  of  those  who  died 
before  the  appointor,  to  an  equal  distribution  of  the  17,OOOZ.  upon 
the  idea  of  that  sum  having  been  vested  in  all  the  children  under  the 
codicil  of  Lord  Sunderland,  and  not  de vested  by  the  appointment, 
in  consequence  of  the  two  appointees  dying  before  the  appointor, 
Lord  Hardwicke  observed,  that  the  codicil  gave  no  interest  to  any 
of  the  children  appeared  from  the  words  of  it,  the  gift  and  distribu- 
tion being  to  and  among  such  children  as  the  Countess  should  ap- 
point. He.  was  therefore  of  opinion  that  there  was  no  gift  to  the 
children  otherwise  than  as  they  might  take  by  the  execution  of  the 
power,(y)  hence  it  followed,  that,  as  no  interest  in  the  fund  vested 
in  any  child  prior  to  appointment,  and  the  two  shares  bequeathed  to 
John  Spencer  and  Lady  Morpeth,  became  eventually  unappointed  by 
their -deaths  before  the  appointor,  neither  the  surviving  children  nor 
the  representatives  of  the  two  deceased  could  make  a  title  to  them : 
not  the  former,  because  there  was  no  appointment  in  their  favour, 
nor  the  latter  because  the  two  persons,  in  whose  rights  they  claimed, 
never  took  any  interests  capable  of  transmission;  the  only  person 
therefore,  to  whom  the  shares  could  possibly  belong,  was  the  per- 
sonal representative  of  the  residuary  legatee  named  in  the  will  of 
the  Earl  of  Sunderland. (g) 

If  then,  as  we  have  seen,  children  will  not  take  vested  interests  in 
a  fund,  prior  to  appointment,  limited  in  remainder  to  such  of  them 
as  A.  shall  appoint,  and  there  is  no  limitation  over  to  them  in  de- 
fault of  appointment ;  it  seems  to  follow,  that  the  determination 
must  be  the  same,  if  the  power  be  restricted  to  such  younger  chil- 
dren as  A.  shall  appoint. (h) 

But  if  in  the  last  stated  case  of  the  Duke  of  Marlborough  v.  Lord 
Godolphin,  the  30,000/.  had  been  given  over  to  the  children  of  Lord 
Sunderland  in  default  of  appointment  by  the  Countess,  it  is  conceived 
that  the  determination  of  Lord  Hardwicke  would  have  been  in 
favour  of  the  surviving  children,  and  the  personal  representa- 
tives of  John  Spen.cer  and  Lady  Morpeth;  since,  from  the  effect 
of  the  limitation  over,  all  the  children  would  have  taken  vested 
interests  in  the  whole  fund,  subject  only  to  be  devested  upon  ex- 
ecution of  the  power  ;  and  as  the  appointment  failed  to  the  extent 
of  17,OOOJ.  those  interests  would  have  been  devested;  a  circum- 
stance, which,  according  to  the  principle*of  Doe  v.  Martin,  and  the 
other  cases  before  stated  and  referred  to,  would  have  entitled  the 

(e)  Chap.  VIII.  sect.  5  p.  337.  and  see  2  Ves.  sen.  75. 

(  f)  2  Ves.  sen.  74.  (e-)  Ibid.  81.  (A)  Sec  1  Ves,  sen.  210. 


SECT.  VII.]        payable  out  of  Personal  Estate.  425 

surviving  children,  and  the  personal  representatives  of  Mr.  Spencer 
and  Lady  Morpeth  to  a  distribution  of  that  sum  among  them. 

SECT.  VII. — As  to  vesting  generally. 

1.  Instances  of  vested  interests  not  being  transmissible  at  the 
death  of  the  legatees. 

It  may  happen  that  the  interest  in  a  bequest  shall  be  so  vested  in 
a  legatee,  as  from  the  nature  and  circumstances  of  the  gift  it  may 
be  considered  to  be  personal,  and  therefore  determine  with  his  life. 
A  case  of  this  kind  occurred  in  exparte  Davies,(i)  in  which  Mr. 
Cottrell  devised,  his  real  and  personal  estates  to  his  wife,  during 
his  son  Henry's  minority  (which  minority  he  directed  should 
cease  on  the  1st  day  of  November  1805,)  upon  condition  that  she 
should  find  his  son  with  suitable  education,  support,  and  clothing; 
and  after  the  determination  of  his  son's  minority,  he  gave  him 
a  moiety  of  his  income.  The  testator  then  directed,  that  upon  his 
wife's  death,  (to  whom  he  had  given  parts  of  his  personalty  for  life,) 
the  whole  of  his  property  should  belong  to  his  son  ;  but  if  he  died 
during  minority,  the  whole  was  to  rest  with  his  said  wife  during  her 
life.  He  also  appointed  guardians  and  trustees  for  his  son,  in  the 
event  of  his  wife  dying  while  his  son  continued  a  minor  ;  an  event 
which  happened ;  but  previously  to  it  she  married  the  petitioner 
Davies  ;  who,  as  her  administrator,  claimed  such  interest  in  the 
testator's  estate  during  the  infancy  of  the  son,  as  his  late  wife  would 
have  been  entitled  to,  had  she  continued  alive  during  the  whole  of 
that  period.  But  the  Master  of  the  Rolls  determined  against  the  claim. 

The  reason  for-  this  decision  appears  to  have  been  the  intention 
of  the  testator  manifested  upon  his  will.  It  would  have  been  a  very 
extraordinary  intentionto  impute  to  this  testator,  as  against  his  own 
son,  that  he  meant  to  give  the  interest  of  his  fortune  to  any  stranger 
who  might  happen  to  be  the  executor  or  administrator  of  the  widow. 
It  was  quite  clear  that  the  testator  only  intended  the  interest  for  her, 
provided  she  .continued  to  live  until  her  son  attained  twenty-one, 
and'  should  be  in  a  situation  to  find  him  with  suitable  education, 
maintenance,  and  clothing.  He  confides  that  trust,  as  he  expresses, 
to  his  said  wife  and  to  no  other  person.  But  contemplating  the  pos- 
sibility of  her  death  during  his  son's  minority,  the  testator  provided 
for  that  event  by  appointing  for  him  guardians  and  trustees;  an  ap- 
pointment, which  would  have  been  useless,  if  the  wife  had  taken 
beneficially  an  absolute  vested  interest  in  the  produce  of  .the  son's 
fortune  until  he  attained  twenty-five  ;  for  then  those  trustees  would 
have  had  nothing  to  manage  ;  the  produce  would  have  been  under 
the  controul  of  the  wife's  personal  representatives,  and  the  son  would 
have  been  at  their  mercy  for  his  education  and  maintenance,  although 
those  two  objects  appear  to  have,  been  the  principal,  if  not  sole,  mo- 
tives of  the  gift  to  the  wife  during  the  minority  of  her  son,  and  for 
which  guardians  and  trustees  were  specifically  appointed  in  the  event 
of  her  death  before  the  son  attained  twenty-five.  This  intention  of 
the  testator  was  further  apparent  from  the  bequest  of  the  whole  pro- 
perty to  the  wife  for  life,  if  his  son  died  under  twenty-five :  a  limita- 
tion, which  negatived  any  intent  that  she  should  take  a  beneficial 
interest  in  the  produce  of  the  estate  before  the  happening  of  that 

(i)  6Ves.l4r. 


426  Of  vested  Legacies  [Cn.  X. 

event,  viz-  during  the  son's  minority.  Under  these  circumstances, 
the  Master  of  the  Rolls  was  of  opinion  that  the  administrator  of  the 
wife  had  no  title. 

Upon  similar  principle  the  decision  in  the  m'ore  simple  case  of 
Neal  v.  Hanbury,(k)  was  founded,  There  Mr.  Neal  bequeathed 
51.  a  year  to  his  nephew  Thomas,  (not  naming  executors  or  admi- 
nistrators), to  be  paid  half  yearly  during  the  life  of  his  wife  on  con- 
dition that  he  behaved  himself  civilly  to  her.  Thomas  died,  and  his 
administratrix  claimed  the  annuity  during  the  life  of  the  testator's 
widow.  But  his  demand  was  negatived  by  the  Master  of  the  Rolls, 
who  said  the  bequest  was  personal  to  Thomas,  which  appeared  from 
the  condition  requiring  his  civil  deportment  towards  the  widow,  and 
could  not  be  observed  after  his  death.  The  annuity  therefore  was 
not  transmissible  to  his  personal  representative. 

2.  As  to  the  word  "  survivors"  being  construed  the  same  as 
"  others." 

Upon  this  subject.  Lord  Eldon  made  the  following  remarks: 
"  The  difficulty  (he  observes)  that  has  always  been  felt  to  apply  the 
term  '  survivors'  to  persons  who  may  not  be  alive  at  the  time  when 
the  distribution  of  the  fund  is  made,  has  been  met  by  presuming 
that  the  testator  intended  those  individuals  not  then  living,  but  who 
might  come  into  existence  before  the  distribution;  construing  the 
word  '  survivors'  as  '  others'  to  take  in  all  who  should  come  into 
existence  before  that  period."(J)  The  same  doctrine  equally  ap- 
plies in  relation  to  persons  who  happen  to  die  previously  to  the 
•time  when  the  fund  is  payable,  when  the  will  shows  the  intention, 
that  the  interests  should  vest  in  those  persons  at  a  particular  period, 
which  they  survived.  In  order' to  illustrate  this  remark — 

Suppose  a  bequest  to  the  testator's  children,  «#.,  B.  and  C.,  to 
be  paid  at  twenty-one,  but  if  B.  or  C.  died  under  age,  then  to  the 
two  survivors;  and  if  two  of  the  legatees  died  before  twertty-one, 
the  whole  to  the  surviving  child;  and  if  the  three  died  under  that 
age,  the  whole  to  go  to  D.  and  E.  Should  B.  die  after  attaining 
twenty-one,  and  'A.  afterwards  under  that  age,  leaving  C.;  although 
C.,  as  the  only  surviving  -child  at  the  death  of  w2.,  when,  his  share 
became  payable,  would,  be  literally  entitled  to  the  whole  of  it;  yet, 
since  upon  B.'s  attaining  twenty-one,  the  will  showed  the  intention 
to  have  been  that  all  B.'s  interests  under  it  should  vest,  the  limita- 
tion over  to  survivors,  in  the  event  oi  one  dying  under  twenty-one, 
would  be  construed  as  if  expressed,  "  to  the  others  of  them:"  a 
construction  which  would  vest  a  moiety  of  JlSs  proportion  in  B., 
although  B.  died  before  «4.,  and  consequently  entitled  B.'s  personal 
representative  to  a  half  of  that  share. 

Such  was  the  case  of  Wilmot  v.  Wilmot,(m)  in  which  Mr.  Wilmot 
bequeathed  to  his  son  Andrew  one  third  part  of  his  residuary  estate, 
to  be  placed  at  interest  for  his  son's  benefit,  with  a  declaration  that 
his  son  should  not  be  put  into  possession  of  it  before  twenty-five. 
The  remaining  two-thirds  the-  testator  gave  to  his  two  daughters, 
Mary  and  Sarah,  to  be  laid  out  at  interest  for  their  advantage,  but 
possession  not  to  be  delivered  to  them  previous  to  their  ages  of 
twenty-one.  Ar\d  if  either  of  them  died  under  twenty-one,  her  third 

(/t)  Pre.Cha.  173.'  (/)  14Ves,  578.  (w)  8  Ves.  10. 


SECT.  VII.  J        payable  out  of  Personal  Estate.  427 

part  was  to  be  equally  divided  between  the  two  surviving  children ; 
but  in  the  event  of  the  death  of  two  children,  the  whole  was  to  de- 
volve to  the  surviving  child.  And  if  the  three  children  died  before 
twenty-one,  the  whole  was  to  go  to  the  testator's  brothers,  A.  and 
B.  Mary  attained  twenty-one,  and  received  her  share ;  she  after- 
wards married,  and  died  in  the  lifetime  of  Andrew  and  Sarah,  and 
of  her  husband,  who  was  her  administrator.  Andrew  then  died 
under  twenty-one ;  consequently  Sarah  was  the  only  surviving  child 
at  the  period  when  Andrew's  share  became  payable  under  the  limi- 
tation over,  and  as  such,  she  and  her  husband  claimed  the  whole  of 
it;  a  demand  resisted  by  the  administrator  of  Mary,  who  claimed  in 
her  right  a  moiety,  upon  the  principle  that  all  the  interests  given  to 
her  by  the  will  vested  upon  her  arriving  at  the  age  of  twenty-one ; 
a  proposition  which  necessarily  included  what  she  might  eventually 
become  entitled  to  receive,  if  either  her  brother  or  sister  did  not 
live  to  the  periods  at  which  their  shares  were  made  payable.  And 
of  that  opinion  was  Lord  Eldon,  who,  in  deciding  in  favour  of  the 
administrator,  thus  expressed  himself:  "  It  must  be  argued,  that  the 
word  '  surviving'  means  the  same  as  '  other,'  or  '  living  at  the  age 
aforesaid.'  In  the  clause  in  which  the  gift  over  is  made,  it  was 
never  meant  that  any  portion  should  be  taken ;  it  was  to  be  either  the 
whole  or  none.  I  think  they  are  right  in  contending  that  this  is  vested." 

3.  Instances  have  occurred  of  sums  of  money  being  directed  to 
be  laid  out  in  the  purchase  of  annuities  for  legatees  during  life  ; 
and  in  consequence  of  their  deaths  before  the  money  was  so  invest- 
ed, questions  have  arisen  between  their  personal  representatives 
and  the  persons  entitled  to  the  fund  to  which  that  money  belong- 
ed ;  the  former  claiming  the  gross  sums,  as  having  vested  in  the 
legatees  at  the  death  of  the  testators ;  and  the  latter  insisiting  that 
the  bequests  were  of  annuities  only,  and  therefore,  since  the  lega- 
tees died  before  the  money  was  so  invested,  it  ought  not  to  be  taken 
out  of  the  general  estate.  It  is,  however,  settled,  that  when  it  is 
clearly  ascertained  to  have  been  a  testator's  intention  that  a  gross 
sum  was  to  be  sunk  in  annuities  for  the  benefit  of  a  legatee,  and 
not  the  interest  of  it  alone  given  to  him  for  life,  he  will  take  a  vest- 
ed interest  in  the  principal,  immediately  upon  the  death  of  the 
testator,  which  will  entitle  his  personal  representatives  to  the 
money,  although  he  happen  to  die  the  day  after  the  testator's  de- 
cease ;  and  upon  this  principle  :  the  gift  to  or  in  trust  for  the 
legatee  being  of  the  absolute  property  in  the  capital,  and  not 
abridged  by^tfee  mode  of  enjoyment  prescribed  by  the  testator,  en- 
titled the  legatee  to  the  money ;  and  a  court  of  equity,  at  the  suit 
of  a  legatee  so  circumstanced,  will  order  it  to  be  paid  to  him,  and 
not  to  be  laid  out  in  the  purchase  of  an  annuity. 

In  Yates  v.  Compton,(n)  the  testator  directed  his  executor  to  sell 
his  real  estate,  and  with  the  proceeds,  together  with  his  personal 
property,  to  purchase  an  annuity  for  the  life  of  Jane  Styles.  Jane 
died  before  the  annuity  was  purchased,  and  even  before  the  lands 
were  sold,  and  yet  her  administrator  was  held  to  be  entitled  to  the 
money. 

So  in  Barnes  v.  Rowley,(o)  a  legacy  was  given  to  be  laid  out  in 

(n)  2  P.  Will.  308.  311.  (o)  3  Yes.  305. 


428  Of  vested  Legacies  [Cn.  X. 

an  annuity  for  the  life  of  the  legatee ;  and  it  was  determined  to 
be  a  vested  interest  at  the  death  of  the  testator,  and  the  personal 
representative  of  the  legatee  therefore  entitled  to  the  whole  sum. 

Similar  to  the  case  of  Yates  v.  Campton  was  that  of  Bayley  v. 
Bishop,(p]  with  this  difference,  that  the  sale  of  the  estate  was  post- 
poned to  the  death  of  a  tenant  for  life.  The  testator,  after  devising 
his  lands  to  his  wife  for  life,  directed  them  to  be  sold  after  her  de- 
cease to  pay  legacies,  one  of  which  (500J.)  he  directed  his  trustees 
to  invest  in  the  purchase  of  an  annuity  for  his  son  for  life,  and  to 
permit  him  to  receive  it.  Notwithstanding  the  son  died  before  the 
wife,  and  consequently  before  the  sale  of  the  property,  and  an  in- 
vestment of  the  500Z.  in  the  purchase  of  an  annuity  could  be 
made,  yet  Sir  W.  Grant  decreed  the  principal  sum  to  the  admin- 
istratrix of  the  son,  upon  the  authority  of  the  preceding  cases. 

The  last  case  was  followed  by  Sir  Thomas  Plumer,  M.  R.,  in 
Palmer  v.  Craufurd,(q)  a  case  attended  with  very  particular  cir- 
cumstances.    There  the  testator  gave  to  trustees  30001.  to  be  in- 
vested in  their  names,  on  the  life  of  his  brother  George  Craufurd,  in 
the  purchase  of  a  government  life-annuity,  of  the  value  of  30001., 
to  be  received  by  them,  and  paid  to  him  every  six  weeks,  for  his  life  ; 
with  a  condition  annexed  to  the  gift,  which  he  performed.     George 
received  an  annual  allowance  from  the  testator,  through  the   me- 
dium of  the  latter 's  agents  in  Holland,  where  George  resided  ;  and 
the  testator,  after  the  date  of  his  will,  directed  those  agents  by 
letter  to  continue  the  allowance  after  his  death,  until  .his  executors 
had  arranged  his  affairs.     He   also  left  a  writing  without  a  date, 
declaratory  of  his  resolution  to  give  such  an  order  to  those  agents, 
for    George's  subsistence,  and  until  the  executors   declared  their 
readiness  to  carry  into  effect  the  clause  in  the  will  respecting  him  ; 
observing,  that  by  this  manner  of  preventing  his  death  being  an 
'inconvenience  to  George,  he  the  better  enabled  his  executors  to 
make   arrangements   with   the  other  legatees.     The    3000Z.  were 
never  invested  as  directed  by  the  will,  owing  to   George's  absence 
in  Holland,  ill  health,  and  other  obstacles,  which  prevented  his  ap- 
pearance at  the  government  annuity-office  in  this  country — an  in- 
dispensable preliminary  to  the  investment  being  made,     tip  to  his 
death  George  received  his  usual  allowance  ;  and  before  that  event, 
the  trustees  were  prepared  to  have  made  the  investment,  had  he 
been  able  to  appear  at  the  office.     Sir   Thomas  Plumer  declared, 
that  notwithstanding  the  circumstances  which  had  occurred  sub- 
sequently to  the  will,  George  took  a  vested  interest  *iq  the  30001. 
which  entitled  his  executors  to  receive  the  money  ;  but  that  since 
George,  instead  of  the  government  life-annuity,  had  been  paid  his 
allowance  from  the  testator's  death,  which   (amounting  to    1050Z.) 
was  admitted  to  be  equal  in  value  with  such  an  annuity,   and  in 
consequence  had  overdrawn  the  estate  of  the  testator,  the  Court 
was  of  opinion,  that  the  legacy  should  be  reduced  in  the  latter 
sum  ;  and  it  adopted  the  following  arrangement : — Interest  was  di- 
rected to  be  computed  .on  the  legacy  of  30001.  ;  and  the  1050J.  was 
to  be  considered  as  so  much  received  by   George  on  account  of 
principal  and  interest. 

(/i)  9  Ves.  6.  (y)  2  Wils.  C.  C.  79.     3  Swan.  482.  S.  C. 


SECT.  VII.]         payable  out  of  Personal  Estate.  429 

4.  Legacies  are  sometimes  given  to  persons  generally,  with  the 
additional  expressions,  "  to  be  at  their  disposal."  Those  bequests 
are  considered  to  be  immediate  vested  interests  in  the  legatees,  so 
as  to  be  transmissible  to  their  personal  representatives,  although  they 
make  no  disposition  of  the  property. 

Thus  in  Robinson  v.  Dusgate,(r)  the  testator  devised  lands  to  B. 
for  life,  remainder  to  C.  in  fee,  he  paying  400/. ;  2001.  of  which  to 
be  "at  the  disposal  of  his  wife  by  will,  to  whom  she  should  think  fit 
to  give  the  same."  The  wife  died  intestate,  and  the  plaintiff,  her 
administrator,  claimed  the  200Z.  The  Court  was  of  opinion,  that  the 
whole  interest  and  property  in  the  money  vested  in  the  wife,  and 
that  her  administrator  was  entitled  to  it. 

The  last  case  was  followed  by  Sir  Thomas  Sewell,  M.  R.  in  Mas- 
kelyne  v.  Maskelyne,(s)  where  the  testator  gave  2001.  to  his  brother 
James,  "  to  be  disposed  of  by  will  as  he  should  think  fit."  Upon  a 
question,  whether  James  had  only  a  power  to  dispose  of  the  money 
by  will,  or  took  any  and  what  interest  in  it,  the  Master  of  the  Rolls 
declared,  that  the  legacy  absolutely  vested  in  James. 

So  in  Hixon  v.  Oliver,(t)  Mr.  Oliver  bequeathed  3001.  to  his  wife, 
"  to  be  disposed  of  as  she  thought  proper,  to  be  paid  after  her  death  :" 
a  bequest  placed  between  an  annuity  to  the  wife,  and  a  specific  le- 
gacy of  a  leasehold  house  limited  to  her  for  life.  The  wife  survived 
the  testator,  and  died  intestate,  having  made  no  disposition  of  the 
3001.  Lord  Erskine  determined,  that  the  wife  took  a  vested  abso- 
lute interest  in  the  legacy  at  the  husband's  death,  which  entitled  her 
administrator  to  receive  it. 

The  legacy  will  equally  vest  in  the  legatee  absolutely,  although 
it  be  given  over  in  the  event  of  his  dying  "  without  disposing  of  it ;" 
because  the  absolute  interest  in  the  fund  having  once  vested,  to 
which  a  power  of  spending  or  otherwise  disposing  of  it  is  incident, 
the  executory  limitation  over  of  the  property,  '*  if  the  legatee  do  not 
dispose  of  it,"  is  a  conditional  defeasance,  repugnant  to  the  original 
bequest,  and  cannot  therefore  be  supported ;  consequently,  the  es- 
tate of  the  legatee  not  being  devested,  his  personal  representative 
will  be  entitled  to  the  legacy,  if  it  be  not  received  by  the  legatee 
during  his  life. 

Upon  this  reasoning,  Sir  Thomas  Plumer,  M.  R.,  decided  the  case 
of  Ross  v.  Ross,(u)  in  which  the  testator,  a  native  of  Scotland,  gave 
to  his  son  James  Ross  2000  J.,  payable  at  twenty-five,  or  between 
twenty-one  and  twenty-five,  at  the  discretion  of  his  executors,  with 
intermediate  interest  for  maintenance  ;  "  and  in  case  James  should 
not  receive,  or  dispose  of  by  will,  or  otherwise,  in  his  lifetime,  the 
20001.,  then  it  should  return,  and  be  paid  to  the  heir  entail  in  pos- 
session of  the  Shandwick  estate  for  the  time  being."  James,  after 
surviving  the  testator,  attained  twenty-five,  and  died  intestate  before 
receipt  of  the  money,  which  was  claimed  by  his  administrator,  upon 
the  ground  that  James  took  a  vested  absolute  interest,  which  was 
not  devested  by  his  death  without  having  disposed  of  the  fund  ;  the 
clause  purporting  to  have  that  effect  being  repugnant  and  void. 
And  the  Court  was  of  that  opinion,  and  decreed  the  legacy  to  the 
administrator. 

(r)  2  Vern.  181.     (s)  Ambl.  750.      (f)  13  Ves,  108.     («)  1  Jac.  &  Walk.  154. 
VOL.  i.  31 


430  Of  vested  Legacies  [Cn.  X. 

It  is  observable,  in  the  cases  we  have  just  been  considering,  that 
the  bequests  were  made  in  forms,  which  imparted  to  the  legatees 
absolute  dominion  over  the  property,  and  amounted  to  absolute  gifts 
to  them  of  the  whole,  interest  in  the  subjects  of  disposition.  But 
when  a  particular  estate  is  limited  in  the  instrument,  followed  by  a 
declaration  that  the  legatee  may  dispose  of  the  fund,  he  will  not  take 
a  beneficial  interest  in  the  capital.  He  will  have  a  mere  power  to 
dispose  of  it,  and  no  more ;  because,  where  a  limited  interest  is  ex- 
pressly given,  its  enlargement  by  implication  will  not  be  permitted. 
If,  then,  the  interest  of  1000Z.  be  given  to  A.  for  life,  with  a  declara- 
tion that  he  may  dispose  of  the  principal  at  his  death,  the  prior  limi- 
tation will  not  merge  in  the  general  power  of  disposition ;  so  that 
A.  will  take  a  vested  interest  for  life,  with  a  power  to  appoint  the 
capital. 

Thus  in  Nannock  v.  Horton,(x)  Mr.  Norman  bequeathed  to  trus- 
tees 8000J.  three  per  cent,  consols,  to  pay  the  dividends  to  his  son 
Robert  for  life,  and  after  his  death  to  pay  and  transfer  60001.,  part 
of  the  capital,  to  such  persons  as  Robert  should  appoint  by  deed  or 
will.  The  testator,  by  a  codicil,  directed  that  Robert  should  be  paid 
the  dividends  for  life  of  600CZ.  only,  part  of  the  8000Z.  three  per  cent. 
consols,  and  at  his  death  he  should  be  at  liberty  to  dispose  of  4000Z., 
part  of  the  6000Z.  three  per  cent,  consols,  instead  of  the  whole  of  the 
latter  sum.  The  question  was,  whether,  under  the  will  and  codicil 
of  the  father,  Robert,  took  a  vested  absolute  interest  in  the  40001. 
stock,  or  merely  an  estate  for  life,  with  a  power  of  appointing  the 
capital*?  And  Lord  Eldon  determined  that,  under  the  will,  Robert 
was  entitled  for  life  only,  with  a  power  to  appoint  the  4000i!.  stock  ; 
a  right  which  was  not  varied  by  the  codicil,  except  as  to  the  quantum 
of  stock  over  which  the  power  extended  by  the  will. 

5.  When  a  legacy  is  expressed  to  be  given  to  answer  a  particular 
purpose  for  the  benefit  of  the  legatee,  which  purpose  is  disappoint- 
ed, and  cannot  take  effect. (?/) 

Where  a  legacy  is  given  to  a  person  to  answer  a  particular  pur- 
pose, to  which  it  becomes  impossible  to  appropriate  it,  but  from  no 
fault  in  the  legatee,  he  will  be  entitled  to  the  money:  as  in  instances 
of  a  sum  of  money  being  left  for  the  benefit  of  an  infant,  as  an  ap- 
prentice fee,  and  he  is  never  placed  in  the  situation  or  character  of 
an  apprentice  ;  or  when  a  legacy  is  given  to  a  person  to  assist  him  in 
defraying  the  expenses  necessary  to  procure  priest's  orders,  and  he 
becomes  a  lunatic  ;  in  each  case  the  legacy  will  vest  at  the  testa- 
tor's death,  and  upon  this  principal :  It  is  considered  that  the  pro- 
perty was  intended  for  the  legatee  at  all  events,  and  that  the  mode 
directed  for  its  application  was  merely  a  secondary  consideration, 
and  independent  of  the  gift. 

Accordingly,  in  Barlow  v.  Grant,(z)  the  bequest  was  of  30/.  to  Ji., 
an  infant,  to  bind  him  an  apprentice.  A.  died  before  attaining  a 
proper  age  to  be  placed  out  an  apprentice  ;  and  the  question  was, 
whether  his  executor  was  entitled  to  receive  the  money  *?  which  de- 
pended upon  a  preliminary  question,  whether  A.  took  a  vested  in- 
terest in  the  legacy  <?  The  Court,  in  determining  in  favour  of  .#.'* 

(x)  7  Ves.  392.  394.  398.  and  see  "Law  of  Husband  and  Wife,"  2vol.  pp. 
205,  &c.  1  P.  Will.  149.  (t/)  Vide  sufira,  p.  377.  (z)  1  Vern.  255. 


SECT.  VII.]         payable  out  of  Personal  Estate.  431 

executor,  necessarily  decided  that  Ji.  took  a  vested  interest  in  the 
fund  previously  to  his  death. 

Similar  to  the  last  is  the  case  of  Nemll  v.  JVewM,(a)  in  which  the 
testator  gave  5001.  to  the  eldest  son  of  John  Nevill,  "  to  place  him 
out  apprentice  ;  or,  as  in  the  registrar's  book,  "  for  putting  him  forth 
either  to  law  or  merchandise."  John  had  a  son  born  after  the  death 
of  the  testator,  who  claimed  the  legacy,  although  he  was  unfit  to  be 
placed  out  as  directed  by  the  will.  Yet  the  legacy  was  ordered  to 
be  paid ;  a  decree  which  must  have  been  founded  upon  the  legatee's 
having  taken  a  vested  interest  in  the  money  at  the  death  of  the  tes- 
tator. 

So  in  Barton  v.  Cooke,(b)  Mr.  Cowling  directed  his  executors  to 
apply  "  1001.  for  the  board  and  education  of  James  Barton,  until  he 
were  fit  to  be  put  out  apprentice,  and  that  then  they  should  pay  the 
further  sum  of  1001.  with  him  as  an  apprentice  fee."  It  appeared 
that  James  attained  the  age  of  nineteen,  but  had  not  been  placed 
out  an  apprentice.  The  question  was}  whether  he  was  entitled  to 
the  legacies  of  IQQl.  each;  and  Lord  Alvanley  decided  in  the  affir- 
mative, remarking,  "  that  if  a  legacy  be  given  for  benefit  of  an  infant 
one  way,  and  it  cannot  be  so  applied,  it  may  be  applied  for  his  bene- 
fit in  another.(c) 


CHAPTER  XI. 

Of  vested  Legacies  payable  out  of  Heal  Estate. 

HAVING  in  the  last  chapter  treated  of  the  vesting  of  legacies 
payable  out  of  personal  estate,  the  subject  next  in  order  is  the  vest- 
ing of  legacies  payable  out  of  real  property,  and  which  will  be  dis- 
cussed under  the  following  arrangement : 

SECT.  I.  Where  the  gift  of  a  legacy  or  portion  is  immediate, 
and  the  payment  postponed  until  the  legatee  at- 
tains twenty-one,  or  marries. 
Legacy  contingent  so  far  as  it  affects  the  real 
estate,  and  vested  so  far  as  regards  the  personal 
estate. 

SECT.  II.  When  payment  of  the  legacy  or  portion  is  not  post- 
poned on  account  of  the  age  of  the  legatee  or 
child,  but  in  regard  to  the  convenience  of  the 
person,  or  the  circumstances  of  the  estate  charg- 
ed with  it. 

Vested,  although  the  legatee  or  child  die  before 
the  time  of  payment. 

(a)  2  Vern.  431.  ed  by  Raithby.  .  (A)  5  Ves.  462. 

(c)  See  the  case  of  Lewis  v.  Lewis,  1  Cox,  162.  stated  infra,  Chap.  XIV.  sect. 
2.  sub-div.  4.  See  also  Harnmond  v.  JVeame,  1  Swan.  35.  infra. 


432  Of  vested  Legacies  [Cn.  XI 

SECT.  I  Where  the  gift  of  a  legacy  or  portion  is  immediate, 
and  the  payment  postponed  until  the  legatee  attains  twenty- 
one,  or  marries. 

IT  was  noticed  in  the  beginning  of  the  second  section  of  the  last 
chapter,  that  courts  of  equity,  in  their  construction  upon  the  vesting 
of  personal  bequests  make  a  difference  when  the  words  "  payable" 
or  "  paid,"  are  or  are  not  inserted  in  the  form  of  the  bequest ;  de- 
termining in  the  first  case  in  favour  of  immediate  vesting,  and  in 
the  second  against  it.  These  courts,  however,  have  adopted  the 
above  distinction  as  a  mere  positive  rule,  in  compliance  with  the 
practice  of  the  Ecclesiastical  Court,  which  in  these  matters  has  a 
concurrent  jurisdiction,  and  not  from  any  conviction  of  the  sound- 
ness of  the  rule.  They  have,  on  the  contrary,  generally  expressed  a 
disapprobation  of  the  distinction,  even  where  they  have  been  under  the 
necessity  of  adopting  it.  '  In  gifts,  therefore,  of  legacies  or  portions 
orignally  payable  out  of,  or  charged  upon  real  estate,  as  such  dis- 
positions are  not  within -the  Ecclesiastical  jurisdiction,  Courts  of 
Equity  have  not  found  themselves  obliged  for  the  sake  of  conformity 
to  adopt  the  same  rule  of  construction  ;  they  have,  therefore,  re- 
quired the  whole  condition,  upon  which  the  legacies  or  portions  were 
given  to  be  complied  with,  viz.  the  attainment  of  the  legatee  to  the 
age  of  twenty-one,  &c. ;  nor  do  they  admit  of  any  exception  whether 
the  legacies  or  portions  were  made  payable  at  twenty-one,  or  given 
at  twenty-one,  or  with  or  without  interest.  This  distinction,  how- 
ever, must  be  noticed,  that  when  legacies  or  portions  are  charged 
both  upon  the  real  and  personal  estates/  if  the  legatees  die  before 
the  time  of  payment,  the  legacies  or  portions  will  sink  into  the  land, 
in  all  cases  where  they  would  be  held  to  sink,  if  the  fund  consisted 
of  real  estate  only  ;  and  they  will  be  considered  vested,  with  re- 
gard to  the  personal  estate,  in  all  cases  in  which  the  same  would  be 
so  adjudged,  if  the  fund  consisted  of  personal  property  only.  And 
it  is  immaterial  whether  the  provisions  be  made  by  deed  or  will. 

The  case  of  Pawlett  v.  Pawlett(a}  is  a  leading  one  upon  the  pre- 
sent subject.  Lord  Pawlett  settled  by  deed  real  property  in  trustees 
for  a  term  of  years  in  remainder  after  his  death,  upon  trust,  after  pay- 
ment of  his  debts,  to  pay  such  sums  of  money  and  maintenance  for 
younger  children,  as  his  Lordship  should  appoint  by  will ;  and,  in 
default  of  appointment,  to  raise  4000/.  a-piece  for  each  such  child, 
payable  at  twenty-one  or  marriage,  with  maintenance  in  the  inter- 
mediate time.  Lord  Pawlett  appointed  by  will  to  his  two  daughters, 
and  only  younger  children,  Susanna  and  Fere,  4000J.  each,  to  be 
raised  and  paid  in  manner,  and  at  the  times,  and  with  the  mainte- 
nance prescribed  by  the  deed.  Both  daughters  survived  him.  But 
^ ere  died  under  age,  and  unmarried,  before  any  part  of  her  portion 
could  be  raised  ;  and  her  mother  was  her  administratrix,  who  claim- 
ed her  portion.  The  question  was,  whether  such  claim  could  be 
supported,  as  Fere  died  under  twenty-one,  and  unmarried.  And  the 
Lord  Keeper  determined  in  the  negative  :  observing,  that  "  the  por- 
tion was  to  come  wholly  out  of  the  lands,  and  the  personal  estate 
no  way  subjected  or  made  liable  to  the  payment  of  it  by  the  will." 

(a)  1  Vern.  321.  affirmed  by  the  House  of  Lords. 


SECT.  I.]  payable  out  of  Real  Estate.  433 

Upon  the  authority  of  the  last  case,  the  Master  of  the  Rolls  de- 
cided that  of  Smith  v.  Smith,(b)  in  which  a  testator  devised  real 
estates  to  his  son  at  the  age  of  twenty-one,  charged  with  SQ  much 
of  his  daughter's  portion,  as  should  not.be  raised  by  his  executors 
and  trustees  before  that  period  ;  and  he  gave  to  his  daughter  1000/., 
to  be  paid  at  twenty-one  or  marriage,  and  to  be  raised  out  of  the 
rents  and  profits  of  the  lands  ;  but  if  his  son  died  under,  age,  &c. 
he  gave  the  estates  to  B.,  who  was  to  make  the  portion  2000Z.  At 
the  death  of  the  testator,  his  son  and  daughter  were  infants  ;  the 
elder  not  being  more  than,  three  years  old.  The  daughter  died 
shortly  after  the  testator,  an  infant  and  unmarred,  as  did  the  son 
under  twenty-one,  after  surviving  the  daughter.  Their  mother,  who 
was  the  personal  representative  of  the  daughter,  claimed  either  the 
whole  or  some  part  of  the  2000Z.,  insisting,  that  her  daughter  took 
a  vested  interest,  although  she  died  during  infancy  and  unmarried. 
But  the  Court  was  of  a  different  opinion,  upon  the  ground  that 
the  provision  was  a  portion,  payable  out  of  real  estate,  which  failed 
by  the  death  of  the  daughter  before  the  time  appointed  for  raising  it. 

The  next  case  decided  upon  the  authority  of  Pawlett  v.  Pawlett, 
was  Yates  v.  Phettiplace.(c)  There  the  testator  gave  to  his  daugh- 
ter a  portion  of  3000i.,  directing  that  if  his  personal  estate  should 
be  applied  in  discharging  a  debt  Ke  owed  upon  mortgage,  the  mort- 
gage should  be  kept  on  foot  to  make  good  the  portion,  which  was 
to  be  paid  at  twenty-one  or  marriage  with  consent,  but  .reducible  to 
100QJ.  if  his  daughter  married  without  consent.  The  daughter  died 
at  six  years  of  age,  and  it  was  adjudged  by  Lord  Somers,  that  the 
portion  should  not  be  raised  for  her  administratrix. 

In  allusion  to  that  case,  Lord  Hardwicke  said  it  was  rightly  de- 
cided, for  if  the  portion  had  vested,  and  it  ha'd  been  charged  upon 
the  personalty  only,  it  would  have  been  transmissible ;  but  being 
originally  a  charge  upon  the  lands,  and  the  legatee  dying  before 
the  day  of  payment,  it  lapsed  to  sink  into  the  inheritance  for  the 
benefit  of  the  heir,  according  to  the  established  rule  of  a  court  of 
equity. 

In  order  to  make  the  portion  originally  payable  out  of  the  real 
estate,  his  Lordship  must  have  considered  that  such  was  the  testa- 
tor's intention,  as  appeared  from  the  direction  given  respecting  the 
mortgage,  the  effect  of  which  was  to  fix  the  land  with  the  amount 
of  the  portion  under  any  circumstances.  For  if  the  personalty  were 
applied  in  -exonerating  the  real  estate  of  the  mortgage,  the  portion 
was  to  be  substituted  in  the  place  of  the  debt ;  or,  if  the  debt  was 
paid  out  of  the  lands,  then  the  personal  fund,  to  the  extent  of  the 
3000/.,  which,  in  the  ordinary  administration  of  assets,  was  first  liable 
to  exonerate  the  real  estate  of  the  debt,  being  saved  to  the  personal, 
would  amount,  in  substance  to  the  application  of  so  much  of  the 
real  proceeds,  in  discharge  of  the  portion.  Hence,  the  portion  being 
solely  payable  out  of  the  land  to  the  daughter  at  twenty-one,  her 
death  under  that  age  necessarily  occasioned  a  lapse  of  it  in  favour 
of  the  heir,  according  to  the  rule  before  mentioned ;  a  rule  founded 
upon  this  reason,  as  expressed  by  Lord  Hardwicke  to  the  following 

'(£)  2  Vem.  92. 

(c)  2  Vern.  416.  Pre.  Ch.  140.  S.  C.  approved  by  Lord  Hardwicke  in  Reynish 
v.  Martin,  3  Atk.  335, 


434  Of  vested  Legacies  [Cn.  XI- 

effect:  "I  have  often  heard  it  said,  that  the  reason  why  legacies, 
&c.  charged  on  land,  payable  at  a  future  day,  shall  not  be  raised  if 
the  legatee  die  before  the  day  of  payment^  though  it  is  otherwise  in 
the  case  of  a  charge  on  the  personal  estate,  is  this,  that  the  heir  is 
a  favourite  with  a  court  of  equity,  and  ought  to  have  the  preference 
of  the  representative  of  a  legatee  ;  and  likewise,  that  the  Court  will 
go  as  far  as  it  can  in  keeping  the  real  estate  entire,  and  as  free  from 
incumbrances  as  possible.  But  I  think  the  Court  has  never  gone 
upon  such  reason,  but  the  true  reason  I  take  to  be,  that  the  Court 
will  govern  itself,  so  far  as  is  consistent  with  equity,  by  the  rules  of 
the  common  law.  In  the  instance  of  personal  estate,  the  rule  is  the 
same  here  as  in  the  civil  law,  that  there  may  be  uniformity  of  judg- 
ments in  the  different  Courts ;  but  in  the  case  of  lands,  the  rule  of 
the  common  law  has  always  been  adhered  to :  as  suppose  a  person 
should  covenant  to  pay  money  to  another  at  a  future  day ;  if  the 
covenantee  die  before  the  day  of  payment,  the  money  is  not  due  to 
his  representatives."^) 

Similar  to,  and  upon  the  authority  of,  the  last  case,  Sir  Joseph 
Jekyll  determined  that  of  Jennings  v.  Looks,(e)  in  which  a  testator, 
having  two  sons  named  Richard  and  Thomas,  and  being  seised  in 
fee  of  the  manor  ofBlackacre  (which  was  in  mortgage,)  devised  1000Z. 
to  Thomas  (then  a  year  old,)  to  be  paid  to  him  at  twenty-one  out  of 
that  manor  :  with  a  power  to  the  executor,  by  selling  timber,  to  raise 
money  in  aid  of  his  personal  estate,  to  pay  debts  and  legacies. 
Thomas  died  about  the  age  of  two  years,  and  Richard  at  the  age  of 
six  ;  upon  which  the  manor  devolved  to  the  uncle.  The  question 
was,  whether  the  administratrix  of  Thomas  was  entitled  to  the  por- 
tion 9  And  the  Court  decided  in  the  negative,  as  Thomas  died  be- 
fore twenty-one,  and  the  portion  was  payable  only  out  of  the  lands ; 
but  Sir  Joseph  Jekyll  observed,  "  that  were  the  legacy  chargeable 
on  the  personal,  as  well  as  the  real  estate,  then  so  much  thereof  as 
the  personal  fund  would  extend  to  pay,  should  go  to  the  executors 
or  administrators  of  the  child." 

Upon  the  strength  of  the  two  last  authorities,  Lord  King  deter- 
mined the  case  of  the  Duke  of  Chandos  v.  Talbot:(f)  a  case, 
where  both  the  real  and  personal  funds  were  charged  with  the  pay- 
ment of  legacies,  and  resort  was  necessary  to  be  made  to  the  real 
estate  in  aid  of  the  personal. 

There  Sir  T.  Doleman  bequeathed  to  his  nephew  Thomas  500Z. 
payable  at  the  age  of  twenty-five.  He  also  devised  his  real  estates 
to  trustees,  charged  with  the  payment  of  debts,  and  legacies.  Thomas, 
having  survived  the  testator,  died  at  the  age  of  sixteen.  From  the 
state  of  the  real  and  personal  assets,  it  became  necessary  for  the 
Court  to  determine,  whether  all  or  what  proportion  of  the  500Z.  was 
to  be  paid,  regard  being  had  to  the  circumstance  of  the  legatee  not 
having  lived  to  the  age  of  twenty-five.  And  the  Court  decided, 
that  so  much  of  the  legacy  as  was  to  affect  the  real  estate  failed  by 
the  death  of  Thomas  under  twenty-five  ;  and  that  such  part  of  it  as 
the  personal  estate  was  sufficient  to  answer  vested  in  the  legatee, 
and  was  transmissible  to  his  personal  representative.  Lord  King 
observed  upon  this  occasion,  that  there  was  no  difference  where  the 

(d)  lAtk.  486.  (e)  2  P.  Will.  276.  (/)  2  P.  Will.  602.  612. 


SECT.  I.]  payable  out  of  Real  Estate.  435 

real. as  well  as  the  personal  estate  were  charged;  for  in  such  case, 
so  far  as  the  executor  or  administrator  claimed  out  of  the  latter 
fund,  he  should  succeed,  according  to  the  rule  of  the  Ecclesiastical 
Court,(g)  in  which  those  things  were  determinable,  even  although 
the  infant  legatee  died  before  the  time  of  payment ;  but  that  so  far 
as  the  legacy  was  charged  upon  the  land,  so  far  should  it,  upon  the 
legatee  dying  before  the  money  became  payable,  sink  ;  a  rule,  which 
having  of  late  universally  prevailed,  whether  the  legatee  were  a 
child  or  a  stranger,  it  would  be  of  the  most  dangerous  consequence, 
and  disturb  a  great  deal  of  property,  to  break  into  it." 

Lord  Hardwicke  acknowledged  the  force  of  these  observations 
on  a  subsequent  occasion.  His  Lordship  said,  "  he  thought  it  very 
extraordinary,  that  when  the  real  estate  was  only  an  auxiliary  fund 
fund  to  the  personal,  it  should  be  chargeable  in  a  different  manner, 
and  not  be  liable  to  the  same  rules  and  determinations  as  the  pri- 
mary security,  the  personal  estate.  But  he  found  the  resolutions  so 
strong,  that  there  was  no  difference  between  a  charge  on  the  real 
estate  only,  and  a  charge  upon  the  real  and  personal  property,  that 
he  could  not  make  a  contrary  determination."  His  Lordship 
therefore,  acted  upon  the  preceding  authorities  in  the  following 
instance  : 

In  Prowse  v.  «3bingdon,(h}  Mr.  Compton,  after  directing  his 
trustees  and  executors  to  sell  part  of  his  real  estate,  towards  satis- 
faction of  debts,  and  to  stand  seised  of  the  remainder,  upon  trust, 
by  the  means  mentioned  in  his  will,  to  pay  all  his  debts  and  lega- 
cies, remainder  to  the  use  of  Mrs.  tflbingdon  for  life,  &c.  gave  to 
his  nephew  Thomas  Proivse  a  legacy  of  5001.  to  be  paid  at  twenty- 
one  or  marriage.  Thomas  never  married,  and  died  under  twenty- 
one  ;  and  it  became  necessary  to  resort  to  the  real  fund  charged 
with  debts  and  legacies,  for  payment  of  the  legacy  of  5001.,  if  the 
administrator  of  Thomas  were  entitled  to  receive  it,  notwithstand- 
ing the  death  of  the  latter  during  infancy.  But  Lord  Hardwicke 
was  of  opinion  against  the  claim,  upon  the  principle,  that  as  Thomas 
died  under  twenty-one,  he  did  not  take  a  vested  interest  in  the 
money,  so  far  as  concerned  the  real  estate. 

In  the  last  case,  it  was  attempted  to  induce  the  Court  so  to  mar- 
shal the  real  and  personal  assets  as  to  confine  the  creditors  to  the 
former,  in  order  that  sufficient  of  the  latter  might  be  left  to  answer 
the  legacy ;  in  which  event,  the  administrator  of  Thomas  would 
have  been  entitled  to  the  money,  as  being  payable  out  of  the  per- 
sonal estate.  Lord  Hardwicke,  however,  was  of  opinion,  that  the 
point  so  raised  could  not  be  maintained ;  for  the  rule  of  thus  mar- 
shalling the  assets  only  applies,  where  it  is  proper  to  be  done,  at 
the  time  the  legacy  first  takes  place,  and  not  where  it  is  owing  to  a 
fact  which  happens  subsequently  to  the  death  of  the  testator,  and  to 
a  mere  accident,  as  the  death  of  the  legatee  before  twenty-one. 

The  next  case  is  an  authority  that  a  gift  of  interest,  until  the  le- 
gacy become  due,  will  not  vest  the  principal ;  but  that  if  the  lega- 
tee die  before  time  of  payment,  the  money  will  sink  into  the  real 
estate. 

(£•)  See  last  chapter,  sect.  2.        (A)  1  Atk,  482,  and  see  Van  v.  Clark,  ibid.  510. 


436  Of  vested  Legacies  [Cn.  XL 

In  Gawlerv.  Standerwicke,(i)  at  the  Rolls,  15  November  1787, 
legacies  were  given  to  infants  out  of  lands  (charged  generally  with 
debts)  payable  at  twenty-one,  with  interest  at  three  per  cent.  One 
of  the  infants  having  died  before  that  age,  Lord  Kenyan,  after  great 
consideration,  decreed,  that  the  legacy  of  the  deceased  child  was 
not  to  be  raised. 

The  last  case  which  we  shall  cite  is  Harrison  v.  Naylor.(k]  Mr. 
Naylor  bequeathed  50002.  to  his  natural  daughter  Elizabeth,  and 
30002.  to  his  unborn  child,  to  be  paid  to  them  respectively  at  twen- 
ty-one ;  and  he  directed  those  legacies  to  be  collected  and  raised  in 
the  manner  and  by  the  means  thereinafter  pointed  out  and  explained. 
He  then  ordered  his  executors  to  invest  his  residuary  personal  estate 
in  Bank  stock,  and  to  lay  it  out  in  the  purchase  of  a  freehold  estate, 
which  he  devised  to  his  natural  son  as  therein  mentioned.  The  tes- 
tator, after  providing  out  of  the  rents  a  maintenance  for  his  children, 
directed  his  executors  to  apply  "  the  residue  of  the  rents  and  profits 
of  the  said  estate  to  the  purpose  of  raising  and  providing  the  lega- 
cies thereby  given  to  his  said  natural  children  ;  and  if  the  said  rents 
and  profits  proved  insufficient,  then  he  made  the  estate,  so  to  be 
purchased,  chargeable  with  the  payment  thereof."  The  child,  who 
was  unborn  at  the  date  of  the  will,  died  an  infant,  to  whom  admin- 
istration was  obtained  by  authority  of  a  sign  manual.  And  the  ques- 
tion was,  whether  the  administrator  was  entitled  to  the  30002.  as  the 
legatee  died  before  the  time  of  payment  *?  From  the  peculiarity  of 
the  bequest,  Lord  Thurlow  at  first  doubted  whether  this  was  not  a 
mere  personal  legacy  ;  but  he  was  finally  of  opinion  that  it  was  pay- 
able out  of  land,  for  such  the  residuary  estate  was  to  be  considered. 
His  Lordship  observed,  that  the  testator,  having  referred  to  the  man- 
ner in  which  the  legacy  was  to  be  raised,  provided  for  the  payment 
of  it  out  of  his  real  estate ;  and  that  the  moment  the  residue  ought 
to  be  laid  out  in  land,  it  was  to  be  considered  as  a  real  fund,  and 
therefore  within  the  common  rule. 

Such  is  the  general  rule  in  regard  to  the  vesting  of  legacies  or 
portions  primarily  given  out  of,  or  secondarily  made  charges  upon, 
real  estate.  But  Courts  of  Equity  have  allowed  and  established  ex- 
ceptions to  it  in  particular  instances  ;  as,  when  the  condition  annex- 
ed to  the  legacy  or  portion  had  respect  to  the  circumstances  of  the 
estate,  and  not  to  the  person  of  the  legatee.  In  those  cases  they 
have  considered,  that  a  benefit  was  at  all  events  intended  for  the 
legatee,  and  that  the  time  of  payment  alone  was  deferred,  with  a 
view  to  the  convenience  of  the  estate,  and  not  to  prevent  the  lega- 
cy from  sooner' vesting.  These  exceptions  it  is  proposed  to  consider 
under  the  following  title  : 

SECT.  II.  When  payment  of  a  Legacy  or  Portion  is  not  post- 
poned on  account  of  the  age  of  the  Legatee  or  Child,  but  in 
regard  to  the  convenience  of  the  person,  or  the  circumstan- 
ces of  the  estate  charged  with  it. 
An  instance,  where  such  a  postponement  of  paying  a  legacy  or 

Bro.  C.  C.  106.  in  a  note  to  Green  v.  Pigot. 

3  Bro.  C.  C.  108.     2  Cox,  247.  5.  C.  and  see  Phijijis  v.  Lord  Mulgrave, 
613.  also  Pearce  v.  Loman,  ibid.  135. 


SECT.  I.]  payable  out  of  Real  Estate.  437 

portion  will  not  prevent  its  vesting,  may  be  thus  supposed.  If  lands 
be  devised  to  A.  for  life,  remainder  to  B.  charged  with  a  legacy  or 
portion  for  C.  upon  the  death  of  ./2. ;  in  this  and  similar  cases,  al- 
though C.  happen  to  die  before  A.  yet  his  personal  representative 
will  be  entitled  to  the  legacy.;  because  the  interest  in  it  is  vested  in 
C.  at  the  death  of  the  testator,  the  time  of  payment  being  only  de- 
ferred for  the  benefit  of  'A.  until  B.  came  into  possession  of  the  es- 
tate. The  real  property  is  not  (as  in  the  instances  produced  in  the 
last  section)  merely  created  a  fund  for  the  payment  of  the  legacy  or 
portion  to  C.  at  a  future  period  on  account  of  his  age  and  unfitness 
to  receive  it  «ooner,  but  the  estate  is  devised  in  remainder  equally 
for  the  benefit  of  B.  and  C.  ;  the  interests  -of  B.  and  C.  vest  toge- 
ther, for  the  testator  Intended  to  divide  the  estate  between  them.  B. 
was  to  take  the  estate  minus  in  value,  by  so  much  as  the  legacy  or 
portion  to  C.  amounted  to.  It  will  appear  from  the  authorities  be- 
low stated,  that  in  determining  cases  according  to  this  distinction, 
the  Court  of-Chancery  has,  in  several  of  them,  laid  particular  stress 
on  the  fact,  that  the  charge  of  the  legacies  upon  the  land  was  not 
merely  equitable  but  legal,  and  would  have,  enabled  the  representa- 
tives of  the  legatee,  who  died  before  the  time  of  payment,  to  recover 
the  money  in  a  Court  of  Law. 

The  first  case,  where  .a  legacy,  payable  out  of  the  real  estate  at  a 
future  time,  was  determined  to  be  vested  before  the  arrival  of  that 
period,  was  Kingv.  fVithers,(l)  in  which  Mr.  Withers  bequeathed  to 
his  daughter  Mary,  at  twenty-one  or  marriage,  2500J.,  declaring  that 
if  his  son  Charles  should  die  without  issue  male  then  living,  or  which 
might  be  afterwards  born,  Mary,  should  receive  an  additional  sum 
of  3500J.  at  twenty-one  or  marriage.  But  if  the  contingency  of  his 
son's  death  did' not  happen  before  Mary  attained  twenty-one  or  mar- 
ried, she  was  nevertheless  to  be  paid  the  3500&  whenever  his  son  died. 
The  testator  then  devised  his  real  estate  to.  his  son  in  tail,  remainder 
to  his  brother  in  fee  ;  and  charged  that  estate  with  the  payment  of 
the  35001.  "  whenever  it  should  b'ecome  due  and  payable,"  directing, 
in  case  of  failure  of  issue  of  his  son,  that  Mary,  her  heirs  or  assigns, 
should  join  in  a  surrender  of  some  copyholds  to  the  use  of  his  bro- 
ther, or  the  bequest  of  the  3500Z.  was  to  be  void.  Mary  having  at- 
tained twenty-one,  died  before  her  brother,  who  also  died  without 
male  issue,  and  the  3500Z.  was  claimed  by  her  administrator.  The 
question  was,  whether  the  money  was  to  be  raised  out  of  the  land, 
the  personal  estate  being  deficient  9  which  depended  upon  this ; 
whether  such  an  interest  in  it  vested  in  Mary,  as  to  be  transmissible 
to  her  personal  representative,  although  she  died  before  the  period 
when  it  was  made  payable  9  And  Lord  Tatbot  decreed  in  the 
affirmative. 

The  decree  appears  to  have  been  founded'upon  the  principle  that 
the  time  of  payment  was  merely  postponed,  in  favour  of  Charles  and 
his  issue,  and  not  in  respect  of  the  age  or  person  of  his  sister,  who 
was  to  .receive  the  3000/.  whenever  Charles  died  without  issue. 
The ' remainder  to  the  brother,  and  the  charge 'upon  it,  vested  at, 

the  same  instant.     It  was  as  much  the  intention  of  the  testator  that 

. 

(/)  Forrest. .  117.  Decree  affirmed  by  the  house  of  Lords,  .?  Bro.  Parl.  Ca.  135. 
8vo.  ed. 

vofi,.  i.  3  K 


438  Of  vested  Legacies  [Cn.  XI. 

Mary  should  have  the  3500J.,  as  that  the  brother  should  succeed 
to  the  estate ;  and  it  clearly  appeared  that  the  testator  meant  to  in- 
crease his  daughter's  provision,  in  the  event  of  Charles's  death 
without  issue.  It  is  therefore  obvious,  that  this  case  is  an  excep- 
tion, upon  sound  principle,  to  the  rule  stated  in  the  preceding 
section. 

The  last  case  was  followed  by  Hutchins  v.  Foy,(m}  where  the 
testator  devised  his  real  and  personal  estates  to  Thomas  Beal  for 
life,  remainder  to  his  children,  remainder  to  his  sister  Martha,  for 
life,  remainder  to  John  Beal  for  life,  and  afterwards  to  his  children, 
with  remainder,  as  to  a  moiety  of  the  real  estate,  to  the  defendant 
Foy  in  fee,  "  paying  out  of  it,  when  it  falls  500Z.,-"  50Z.  of  which 
he  gave  to  Margaret,  a  daughter  of  his  sister  Martha.  Margaret 
died  before  Thomas  Beal,  and  the  remainder  to  Foy  having  come 
into  possession,  Margaret's  administrator  claimed  the  50J. ;  con- 
tending that  she  took  a  vested  interest  in  that  sum  at  the  death  of 
the  devisor,  which  entitled  her  personal  representative  to  receive  it; 
and  so  the  Court  determined. 

The  reasons  for  such  decision  were  these :  First,  because  the  re- 
mainder to  Foy,  and  the  50Z.  out  of  it,  vested  immediately  upon  the 
demise  of  the  testator;  and,  secondly,  because  the  estate  and  the 
charge  upon  it  passed  together,  so  that  the  devisee  took  the  estate 
cum  onere;  for,  since  it  was  the  testator's  "intention  that  Foy  should 
have  the -estate,  it  was  as- much  his  intention  that  Foy  should  pay 
the  money  out  of  ity  when  the  possession  came  to  him,  and  the 
word  "  paying"  clearly  showed  the  intent  of  the  testator,  that  Foy 
should  not  have  the  land  unless  he  paid  the  money. 

So  in  Lowther  v.  Condon,(n)  a  case  maturely  considered  by  Lord 
Hardwicke,  in  which  Mr.  Condon,  having  a  son,  and  also  two 
daughters,  Isabella  and  Diana,  bequeathed  to  each  daughter  5001. 
to  be  raised  and  paid  out  of  the  rents,  or  by  sale  or  mortgage  of 
specific  lands  immediately  after  his  death,  together  with  interest 
from  that  period  until  the  legacies  were  paid  to  them,  "  or  their 
respective  executors,  administrators,  or  assigns."  The  testator  fur- 
ther gave  to  each  daughter  1 000Z.  to  be  raised  and  paid  "  imme- 
diately after  the  decease  of  his  wife,"  by  the  means  before  men- 
tioned, with  interest  from  the  wife's  death  until  the  money  was  paid 
to  them,  "  or  their  respective  executors,  administrators,  or  assigns." 
And  the  testator  declared,  that  if  either  daughter  died  before  him, 
the  survivor,  her  executory,  administrators,  and  assigns,  should  re- 
ceive the  whole  of  the  legacies ;  and  in  such  case,  the  part  of  the 
daughter  so  dying  should  not  cease,  or  sink  into  the  estate  for  the  be- 
nefit of  the  heir,  but  should  remain  and  be  raised  for  the  benefit  of 
the  surviving  daughter^  Diana,  after  surviving  the  testator,  died 
during  the  life  of  her  mother,  and  Diana's  husband  claimed,  as  her 
administrator,  to  have  the  WOOL  raised  out  of  the  real  estate,  the 
mother  being  dead ;  a  claim  which  depended  upon  this,  whether, 
notwithstanding  Diana  died  before  her  mother,  the  period  when 
the  legacy  was  to  be  raised,  she  took  such  an  interest  in  it,  as  was 
transmissible  to  her  personal  representative  ?  And  Lord  Hardwicke 
decided  in  the  affirmative. 

(w)  'Com.  Rep.  716.  m          -  (n)  2  Atk.  127.  . 


SECT.  I.]  pay  able  out  of  Real  Estate.  439 

In  pronouncing  judgment  in  the  last  case,  Lord  Hardwicke  ad- 
verted to  the  distinction,  before  mentioned,  where  the  time  of  pay- 
ing a  legacy  is  postponed,  in  consequence  of  the  circumstances  of 
the  estate,  and  not  in  consequence  of  the  circumstances  of  the 
legatee  But  it  was  unnecessary,  in  the  present  instance,  to  rely 
alone  upon  that  distinction,  in  order  to  give  vested  interests  to  the 
daughters ;  for  his  Lordship,  as  he  declared,  founded  his  opinion 
principally  upon  the  clause  in  the  will,  providing  against  lapse,  if 
either  daughter  died  before  the  testator ;  from  which  he  drew  the 
conclusion,  that  the  testator's  having  shown  so  decided  an  inten- 
tion to  prevent  the  legacy  from  sinking  into  the  land,  upon  the  hap- 
pening of  the  event  just  mentioned,  afforded  a  very  powerful  reason 
for  inferring  that  he  did  not  mean  it  to  sink  into  the  estate,  if  the 
daughters  survived  him.  Lord  Hardwicke  was  therefore  of  opinion, 
that  the  clause  alluded  to  afforded  a  plain  indication  of  the  testator's 
intention,  that  his  daughters  should  have  their  legacies  at  all  events, 
totally  independent  of  4he  accident  of  their  dying  during  the.  life  of 
their  mother. 

The  same  Judge  made  a  similar  decision  in  Ernes  v.  Hancock,(o) 
which  in  circumstances  differs  from  the  preceding  authorities  stated 
in  this  section  There  Mr.  Hancock  devised  his  copyhold  estate  to 
his  wife  for  life,  remainder  to  his  son  Stephen  until  his  grandson 
Thomas  attained  the  age  of  twenty-three  ;  at  which  time  he  gave 
the  property  to  Thomas  in  fee,  on  condition  that  he,  his  heirs,  or 
assigns,  paid  or  caused  to  be  paid  to  his  grand-daughter  Elizabeth, 
60Z.  within  two  years  after  his  attaining  twenty-three ;  but,  if  he 
(Thomas)  happened  to  die  without  issue,  then  the  testator  devised 
the  copyhold  to  his  son  Stephen  in  fee,  on  condition  of  paying  100Z. 
to  Elizabeth,  within  one  year  after  he  enjoyed  the  estate  under  the  last 
devise  ;  and  upon  default  in  payment  by  Stephen  or  Thomas  of  the 
601.  a  right  of  entry  on  the  estate  was  given  to  Elizabeth,  her  ex- 
ecutors and  administrators.  Elizabeth^  after  surviving  the  testator, 
married  the  plaintiff,  and  lived  till  after  Jier  brother  Thomas  ar- 
rived at  the  age  of  twenty-three,  but  died  before  the  expiration 
of  the  two  years  after  Thomas  attained  that  age.  The  question 
was,  whether  the  plaintiff,  Elizabeth's  personal  representative,  was 
entitled  to  the  legacy  9  And  Lord  Hardwicke  determined  in  his 
favour. 

The  case  of  King  v.  Withers,  before  stated, (p)  is  a  direct  authori- 
ty for  the  vesting  of  the  interest  in  Elizabeth,  notwithstanding  she 
did  not  survive  the  two  years  after  her  brother  Thomas  attained  his 
age  of  twenty-three.  Lord  Hardwicke  observed,  "  That  the  testa- 
tor's appointing  two  years  after  Thomas,  attained  twenty-three,  for 
raising  the  601. ,  seemed  to  be  done  merely  for  the  convenience  of 
the  estate."  But  his  Lordship  chiefly  relied  upon  the  title,  which 
Elizabeth,  and  her  executors  or  administaators,  had  at  law,  under 
the  will,  to  recover  the  money.  The  devise  operated  as  a  condi- 
tional limitation  ;(<?)  and,  in  default  of  payment,  she  or  her  person- 
al representatives  might  have  entered  upon  the  estate. (r)  The 
death  of  Elizabeth  within  the  two  years  was  at  law,  neither  the 
breach  of  any  condition,  nor  any  excuse  for  withholding  the  601. 

(o)  2  Atk.  507.     (  /?)  Ante,  p.  437.     (y)  See  2 Black.  Com.  155.     (r)  3  Atk.  322. 


440  Of  vested  Legacies  [Cn.  XI. 

But  the  condition  for  payment  of  it  subsisted  after  the  testator's 
death,  for  the  breach  of  which,  the  plaintiff,  as  administrator  of 
rjizabeth,  had  a  legal  remedy.  Such  being  the  right  of  the  plain- 
tiff at  law  to  the  money,  a  court  of  equity  would  neither  deprive 
him  of  it,  nor  refuse  to  grant  relief  merely  because  he  had  a  legal 
title ;  for  the  consequence  of  such  refusal  would  have  been,  that  if 
the  plaintiff  obtained  a  judgment  in  ejectment,  the  defendant  might 
have  come  into  equity  for  a  redemption  upon  payment  of  the  60J ; 
a  circuity  and  multiplication  of  suits  which  the  Court  always 
avoids.(«)  For  these  reasons,  Lord  Hardwicke  ordered  the  money 
to  be  raised  and  paid  to  the  plaintiff. 

The  next  case  nearly  resembles  the  last,  and  is  another  instance, 
where  the  charge  on  real  estate  was  legal,  and  not  merely  equita- 
ble, as  in  several  of  the  cases. . 

In  Shermanv.  Collins,(t)  Mr.  Collins  bequeathed  to  each  of  his 
daughters,  Mary  and  Ann,  300/.,  to  be  paid  to  them  when  his  son 
John  attained  the  age  of  twenty-six,  withoiltrintermediate  interest ; 
and  he  charged  the  two  legacies  upon  his  real  and  personal  estates, 
and  gave  to  the  legatees  a  right  of  entry  upon  the  reality,  to  hold 
until  the  money,  with  interest  from  the  time  it  became  due,  was 
paid  ;  and  after  such  payment,  he  devised  the  real  estate  to  his  son 
John  in  fee  ;  who  attained  the  age  of  twenty-six,  but  Ann  and  Ma- 
ry died  before  John  attained  that  age,  they  having  first  arrived  at  the 
age  of  twenty-one.  One  of  them  married  and  left  children  ;  the 
other  died  unmarried,  and  bequeathed  her  legacy  to  her  sister ; 
whose  husband  and  two  children  claimed  both  legacies,  though 
each  sister  died  before  their  brother  John  attained  the  age  of  twen- 
ty-six. And  Lord  Hardwicke  decreed  in  their  favour,  notwith- 
standing it  should  be  necessary  to  resort  to  the  real  estate,  in 
aid  of  the  personal  fund,  which  was  first  applicable  to  those 
demands. 

We  here  observe  the  uniformity  of  principle  which  pervades  this 
and  the  preceding  cases.  .  It  is  obvious  that  the  time  of  paying  the 
legacies  of  300/.  was  merely  postponed,  to  prevent  the  burthen  of 
interest  falling  upon  the  estate  of  John,  until  he  attained  the  age 
of  twentyrsix.  And  when  the  testator  had  given  this  express  rea- 
son for  the  postponement,  it  would  have  been  a  very  unnatural 
construction,  to  infer  that  the  daughters  or  their  representatives 
should  lose  the  legacies,  because  the  former  happened  to  die  before 
John  attained  the  above  age.  The  legacies,  therefore,  vested  in 
each  daughter,  the  payment  being  deferred  for  the  conveniency  of 
the  estate,  and  not  in  respect  of  the  circumstances  of  the  legatees. 
Besides  the  daughters  and  their  personal  representatives  had  the 
same  legal  title  to  recover  the  legacies,  as  Elizabeth  Hancock  and 
her  representatives,  in  the  case  of  Ernes  v.  Hancock ;  a  circum- 
stance upon  which  Lord  Hardwicke  placed*  reliance,  in  pronouncing 
his  judgments  in  both  cases. 

The  observations  that  have  been  made,  also  apply  to  the  case  of 
Hodgson  v.  Rawson,(u)  in  which.  Mr.  Hollins  devised  part  of  his 

(s)  3  Atk.  322.  .  (,)  3  Atk.  319. 

(w)  1  Ves.  sen.  44.  and  see  Wilson  v.  Shencer,  stated  by  Lord  Hardwicke  in 
this  case,  ibid.  48.  and  in  3  P.  Will.  172, 


SECT.  I.]  payable  out  of  Real  Estate.  441 

real  estate  to  his  mother  for  life,  with  remainder  to  William  Rawson 
and  his  heir's,  he  and  they  paying  out  of  it  legacies  to  several  per- 
sons ;  the  sums  to  be  paid  within  twelve  months  next  after  the  mo- 
ther's decease ;  and  he  charged  the  estate  with  them  accordingly. 
The  mother  entered  upon  the  estate,  and  a  month  after  her  death, 
B.  a  legatee  of  100Z.  died,  whose  t  personal  representatives  claimed 
the  money,  although  B.  did  not  survive  the  mother  a  twelve  month; 
the  period  appointed  for  its  payment.  Yet  Lord  Hardwicke  determin- 
ed that  they  were  entitled  to  the  legacy  ;  1st,  because  the  estate  was 
liable  at  law  to  the  payment  of  the  legacies ;  the  devise  to  William 
being  a  condition,  of  which,  if  broken,  the  testator's  heir  might  take 
advantage  by  entry,  but  who  would  hold  the  estate  under  the  charge 
in  the  will,  subject  to  the  legacies  ;  2dly,  because  the  remainder  and 
the  charge  upon  it  vested  at  one  and  the  same  instant,  it  having 
been  equally  the  intention  of  the  testator,  that  the  legacies  should 
be  paid/as  that  the  remainder-man  should  have  the  estate  ;  and  last- 
ly, because  the  postponement  of  paying  the  legacies,  till  twelve 
months  after  the  mother's  death,  was  not  intended  to  suspend  the 
vesting,  but  merely  as  an  allowance  of  a  reasonable  time  to  the  de- 
visee in  remainder,  after  the  estate  came  into  possession,  to  make 
the  payments  charged  upon  it. 

Similar  to  the  last  case  is  Tunstall  v.  Brachen,(x)  where  the  tes- 
tator devised  an  estate  to  one  of  his  sisters  and  co-heiresses,  paying 
1-OOZ.  a  year  to  his  wife  for  life,  and  within  twelve  months  after  the 
wife's  death  to  pay  several  legacies.  Some  of  the  legatees  who  sur- 
vived the  testator,  died  before  his  wife  ;  and  Lord  Hardwicke  held 
that  they  took  vested  interests,  which  entitled  their  personal  repre- 
sentatives to  payment  of  the  money ;  upon  the  principle,  that  the 
time  of  payment  was  only  deferred  for  the  convenience  of  the  estate, 
and  that  the  rights  of  the  legatees  were  not  merely  equitable,  but 
available  at  law. 

So  in  Embrey  v.  Martin,(y)  Mr.  JVea&on  devised  his  freehold  es- 
tates to  his  son  John  in  tail,  remainder  to  his  daughter  Prudence  in 
tail,  remainder  to  his  daughter  Elizabeth  for  life,  remainder  to  her 
son  John  Trigg  in  fee,  upon  condition  that  he  paid  to  his  sister  Mrs. 
Embrey,  1 001.  at  or  soon  after  his  being  possessed  of  the  premises  ; 
and  for  non-payment,  the  estates  should  be  to  Mrs.  Embrey <>  &c, 
John,  Prudence,  and  Elizabeth,  being  dead,  Mrs.  Embrey  died,  but, 
during  the  life  of  one  of  the  persons  last  named;  and  the  remainder 
in.  fee  in  the  testator's  estate  haying  become. vested  in  possession, 
the  question  was,  whether,  as  Mrs.  Embrey  died  before  the  legacy 
was  payable,  the  plaintiff',  as  her  executor,  was  entitled  to  have  it 
raised  out  of  the  real  estates  devised  in  remainder  to  John  Trigg  ? 
and  Lord  Hardwicke  determined  in  the  affirmative. 

It  is  observable  in  the  last  case,  that  payment  of  the  legacy  was 
merely  postponed  until  the  devisee  came  into  possession  of  the  es- 
tate charged  with  it.  The  conveniency  of  the  devisee  was  the  sole 
motive  for  deferring  the  raising  of  the  money,  which  was  intended 
by  the  testator  to  be  received  by  the  legatee  or  his  personal  repre- 
sentatives, whenever  the  remainder-man  became  possessed  of  the 
fund  out  of  which  it  was  to  be  paid.  Similar  to  the  four  preceding 

(.r)  Ambl.  167".  more:  fully  reported  1  Bro.  C.  C.  124.  in  a  note,     (y)  Ambl.  230. 


442  Of  vested  Legacies  [Cn.  XL 

cases,  the  legatee  or  her  personal  representatives,  in  the  last,  were 
entitled  to  the  money  at  law  ;  the  devise  operating  as  a  conditional 
limitation,^)  which,  in  default  of  the  money  being  paid  when  due, 
authorized  the  legatee  or  her  representatives  to  enter  upon  the  es- 
tate. Lord  Hardwicke  therefore,  in  ordering  the  100/.  to  be  paid  to 
the  executor  of  the  legatee,  acted  in  conformity  with  prior  authori- 
ties ;  which  were  acknowledged  and  followed  by  Lord  Camden  in 
the  case  of  — 

Manning  v:  Herbert,(a)  where  the  testator,  being,  entitled  to  a  farm 
let  to  a  Mr.  Taylor,  also  to  a  dwelling  house,  and  to  great  and  small 
tithes  of  little  value,  devised  to  his  wife,  his  house  and  the  lands  be- 
longing to  it,  together  with  his  estate  in  the  occupation  of  Mr.  Tay- 
lor, directing  that  when  his  son  William  attained  twenty-one,  his 
wife  should  pay  to  William  401.  a  year  out  of  the  lands  in  Taylor's 
occupation.  He  then  gave  to  his  daughters  Jane  and  Elizabeth,  the 
great  and  small  tithes,  and  expressed  his  will  to  be,  that  six  months 
after  his  wife's  death  William,  should  pay  out  of  the  estate  which  was 
then  in  the  occupation  of  Mr.  Taylor,  (5001.  to  Jane  and  Elizabeth 
in  equal  shares  ;  and  in  so  doing  the  testator  gave  the  whole  of  his 
real  estate  to  William  in  fee  ;  but  if  either  Jane  or  Elizabeth  died 
before  the  wife,  the  survivor  was  to  have  the  tithes,  and  only  400£. 
out  of  Taylor's  lands  ;  and  in  case  of  non-payment,  a  right  of  entry 
on  those  lands  was  given  to  both  or  either  of  the  daughters.  Jane 
survived  Elizabeth,  but  both  died  before  the  wife;  and  Jane's  ad- 
ministrator claimed  the  4001.  which  was  resisted  on  the  ground,  that, 
as  she  died  before  the  money  was  payable,  it  sunk  into  the  estate. 
But  Lord  Camden  was  of  a  different  opinion,  and  ordered  the  legacy 
to  be  paid  to  the  administrator  of  Jane. 

The  foundation  of  Lord  Camden's  decree  was,  that  the  legacies 
not  being  made  payable  during  the  life  of  the  wife,  was  merely  for 
her  benefit  ;  and  that  the  six  months  after  her  death  was  allowed  for 
the  convenience  of  William;  in  order  to  enable  him  to  raise  the 
money,  within  a  reasonable  time,  after  he  had  obtained  possession 
of  the  estate.  All  which  Circumstances  showed  it  to  have  been  the 
testator's  intention,  that  the  surviving  daughter  or  her  personal  re- 
presentative was  to  receive  the  400Z.  at  all  events.  In  addition  to 
this,  the  titles  of  Jane  and  her  administrator  were  not  merely  equita- 
ble but  legal;  a  fact,  to  which  Lord  Camden  (as  we  have  seen 
Lord  Hardwicke  to  have  previously  done)  attached  considerable 
importance. 

In  Jeal  v.  Tichener,(b)  Lord  *Jlpsley  made  a  like  decree,  referring 
to  the  cases  of  Hutchins  v.  Foy,  and  Hodgson  v.  Rawson  before 
stated.(c)  Mr.  Shove  devised  two  houses  to  his  wife  for  life,  remain- 
der to  the  defendant  Tichener  in  fee,  he  paying  thereout  to  Henry 
and  Thomas  Thornton  20L  a  piece  within  three  months  after  the 
death  of  his  wife.  The  two  legatees,  having  survived  the  testator, 
died  before  the  wife,  but  she  being  dead,  and  Tichener  in  possession 
of  the  houses,'  the  personal  representatives  of  the  legatees  claimed 
the  legacies  bequeathed  to  them.  And  Lord  Jlpsley  declared,  that 
the  money  vested  in  the  legatees,  so  as  to  be  transmissible  to  their 

Black.  Com.  155.  (a)  Ambl.  575. 

Bro.  C.  C.  120.  in  a  note.    Ambl.  703.  5.  C,  (c)  Ante,  pp.  438.  440. 


z)  2 
A)  1 


SECT.  I.]  payable  out  of  Real  Estate.  443 

personal  representatives,  and  was  a  charge  upon  the  houses  devised 
to  Tichener. 

These  cases  were  followed  by  Lord  Bathurst  in  Clarke  v.  Ross,(d) 
in  which  Mr.  Mason  devised  his  real  estates  to  Joseph  Mason  for 
life,  remainder  to  his  first  and  other  sons  in  tail,  &c.  with  remainder 
in  fee  to  Alexander  Wilson;  declaring  that  if  Alexander  or  his  heirs 
should  actually  come  into  possession  of  the  estates,  under  the  limi- 
tations in  the  will,  he  or  they  should  pay  to  his  daughter  Catherine 
Wilson,  2000J.  (with  which  sum  the  testator  charged  the  estates,) 
to  be  paid  at  the  expiration  of  two  years,  next  after  Alexander  or  his 
heirs  should  come  into  possession.  Catherine  married,  but  died 
several  years  before  the  remainder  to  Alexander  came  into  posses- 
sion ;  and  the  question  was,  whether  she  took  such  a  vested  interest 
in  the  2000Z.  although  she  died  before  the  money  was  payable,  as  to 
entitle  the  person  claiming  under  her  personal  representative  9  And 
Lord  Bathurst  was  of  opinion,  that  the  interest,  did  vest  in  Cathe- 
rine, and  he  ordered  the  legacy  to  be  raised,  with  interest,  from 
the  end  of  two  years  after  the  remainder  in  Alexander  vested  in 
possession. 

So  in  Kemp  v.  Davy,(e]  Mr.  Kemp  charged  his  real  estates  with 
debts,  legacies,  and  annuities,  and  devised  his  real  and  personal  pro- 
perty to  trustees  to  discharge  them.  After  giving  several  legacies 
and  annuities,  among  which  were  legacies  to  his  wife  and  to  his 
sisters  Jane  Blois  and  Elizabeth  Kemp,  he  ordered  his  trustees,  if 
his  nephew  John  Kemp  attained  twenty-one,  to  convey  the  trust 
funds  to  him  in  fee,  subject  to  the  subsisting  debts,  legacies  and 
annuities ;  but  if  his  nephew  died  under  that  age,  he  (the  testator) 
gave  additional  legacies  to  his  wife,  to  Jane  Blois  and  to  Elizabeth 
Kemp,  directing  them  to  be  paid  within  six  months  after  his  nephew's 
death  under  twenty-one ;  and  he  devised  his  real  and  personal  estates 
to  Mary  Kemp,  &c.  John  Kemp,  the  divisee,  died  under  age,  but 
survived  the  widow,  and  Jane  Blois  an'd  Elizabeth  Kemp.  The 
question  was,  whether,  as  the  last  three  persons  died  before  John, 
their  personal  representatives  were  entitled  to  the  additional  lega- 
cies ?  And  the  Court  declared  that  the  three  legatees  took  vested 
interests,  which  were  transmitted  to  their  personal  representatives. 

We  perceive  that  all  the  authorities  which  have  been  stated  are 
uniform  in  establishing  the  proposition,  that  where  a  legacy  is  given 
out  of  a  particular  «fund,  with  reference  to  the  period  when  the  fund 
shall  vest  in  possession,  as  for  instance,  when  an  estate  is  devised  in 
remainder  to  B.  with  a  charge  to  C.;  the  gift  amounts  to  a  distribu- 
tion of  the  estate  between  B.  and  C.  Since  therefore  the  remain- 
der to  B.  vests  immediately,  so  does  the  charge  for  C.  The  cases 
also  next  referred  to,  were  all  decided  upon  this  principle,  and  in 
exception  to  the  rule  mentioned  in  the  beginning  of  the  chapter ;  a 
rule  which,  though  at  first  universally  adopted, (f)  was  afterwards 
considered  to  be  very  objectionable ;  and  in  consequence  was  (fttised 

(cQ  2  Dick.  529.     1  Bro.  C.  C.  120.  in  notis.  (e)l  Bro.  C.  C.  120.  in  notis. 

(/)  Among  the  cases  determined  according  to  the  general  rule,  and  which  seem 
to  be  inconsistent  with  later  authorities,  are  Tournay  v.  Tournay,  Pre.  Ch.  290. 
Carter  v.  Bletsoe,  2  Vern,  617.  Gordon  v.  Raynes,  3  P.  Will.  134.  Bradley  v. 
Powell,  Forrest.  193.  Boycot  v.  Cotton,  1  Atk.  552.  Hallv.  Terry,  ibid.  502. 
and  Alt.  Gen.  v.  Milner,  3  Atk.  112. 


444  Of  vested  Legacies  [Cn.  XI. 

the  exception  we  have  been  discussing,  where  the  time  of  payment 
referred,  not  to  the  person  of  the  legatee,  but  to  the  circumstances 
of  the  esiatr.(£) 

In  faicsey  \.  Edgar, (h)  the  testator  devised  his  real  estate  to  his 
wife  for  life,  remainder  to  his  son  Robert  in  tail  male,  with  remain- 
der to  his  own  right  heirs  ;  upon  condition  that  Robert,  or  the  per- 
sons then  in  possession  of  the  estate,  should  within  six  months  after 
the  death  of  the  wife,  pay  to  his  two  daughters,  Mary  and  Tempe- 
rance, 6QHl.  a  piece,  and  interest  from  the  wife's  decease,  with  a 
right  of  entry  in  default  of  payment.  And  although  the  daughters 
died  before  the  wife,  after  surviving  the  testator,  Lord  Bat  hurst  de- 
termined that  they  took  vested  interests,  which  entitled  their  per- 
sonal representatives  to  the  legacies. 

Lord  Northington  pronounced  a  similar  degree  in  Thompson  \. 
Dow,(i)  where  the  testator,  being  seised  of  a  reversion  in  an  estate 
expectant  upon  the  death  of  his  aunt,  devised  the  lands  to  his  wife 
for  life,  remainder  to  Dow  in  fee  ;  subject  to  the  payment  of  200J. 
to  his  daughter  Elizabeth  six  months  after  his  wife's  death,  with  a 
right  of  entry  in  default  of  payment.  Notwithstanding  Elizabeth 
died  before  the  wife  and  aunt,  his  Lordship  held  that  she  took  a 
vested  interest  transmissible  to  her  personal  representative. 

These  cases  were  followed  by  the  Court  of  Exchequer  in  Mor- 
gan v.  Gardiner,(k)  in  which  Mr.  Price  devised  his  real  estate  to 
his  wife  for  life,  remainder  to  his  daughter  Mary  in  fee,  charged 
with  400Z.  to  his  four  younger  daughters,  within  one  year  after  the 
death  of  his  wife,  with  interest  from  her  decease.  Two  of  the  young- 
er daughters  died  before  the  wife,  unmarried.  Mary  too,  the  de- 
visee of  the  estate,  died  during  the  life  of  the  wife  ;  and  it  was  de- 
termined, that  the  legacies  vested  in  the  younger  daughters,  which 
entitled  the  personal  representatives  of  those  who  were  dead,  to 
their  proportions  of  the  fund. 

It  is  observable,  that  the  fast  case  differs  from  the  preceding  au- 
thorities, in  the  circumstance  of  the  devisee  in  remainder  having 
died  before  the  determination  of  the  particular  estate.  This  event, 
however,  was  immaterial,  for  Mary,  the  devisee  took  a  vested  inte- 
rest in  the  lands  liable  to  the  legacies,  and  which  she  must  have 
paid  had  she  survived  the  tenant  for  life.  The  person  therefore 
claiming  under  her,  who  in  this  instance  was  her  heir,  necessarily 
succeeded  to  the  estate,  subject  to  all  the  claims, to  which  it  would 
have  been  liable  in  the  hands  of  Mary,  had  she  survived  the  tenant 
for  life,  when  the  remainder  would  have  vested  in  possession.  In 
truth,  the  charge  was  a  lien  upon  the .  estate,  which  it  would  be 
bound  to  answer,  into  whose  hands  soever  it  went. 

In  Dawson  v.  Killett,(l]  a  case  of  frequent  reference,  the  princi- 
ple of  the  authorities  before  stated  was  considered  and  acknow- 
ledged. Mr.  Mitchell  devised  an  estate  to  his  wife  for  life,  and  if 
tftey'^ould  have  no  issue,  he  gave  the  estate  to  the  defendant  Kil- 
let,  charged  with  100J.  to  William  Ranscomb,  and  100Z.  to  Martha 
Ball,  to  be  paid  in  six  months  after  the  death  of  his  wife.  Martha 
having  died  "before  the  testator,  he,  by  a  codicil,  gave  50Z.  of  her 

(3-)  1  Bro.  C.  C.  1  (A)  Ibid.  192.  in  nods.  (i)  Ibid.  193.  in  note. 

(*)  1  Bro.  C.  C.  194.  innotia.  (/)  1  Bro.  C.  C.  119. 


SECT.  II.]  pay  able  out  of  Real  Estate.  445 

legacy  to  Ranscomb,  and  the  remainder  of  it  to  a  Mr.  Beaumont,  to 
be  paid  at  the  time  Martha  would  have  been  entitled  to  receive  the 
legacy,  had  she  lived.  Ranscomb,  after  surviving  the  testator,  died 
before  the  wife,  and  the  wife  being  dead,  Ranscomb's  executors 
claimed  the  legacies  of  150Z. ;  and  Lord  Thurlow  was  of  opinion 
that  they  were  entitled  to  them ;  and  said,  "  the  devise  was,  after 
the  death  of  the  wife,  to  Killet,  and  the  testator  charged  the  estate 
of  Killet  (meaning  the  interest  of  Killet  in  the  estate)  with  the 
sums  in  question,  which  distributes  the  estate  between  Killet  and 
the  legatees.  Upon  the  death  of  the  testator,  the  remainder  vested 
in  Killed,  and  the  moment  it  vested  in  him,  the  charges  vested  in 
those  to  whom  they  were  given."  His  Lordship  therefore  ordered 
the  1 50Z.  to  be  raised,  with  interest  to  be  computed  from  six  months 
after  the  death  of  the  wife. 

A  similar  question  came  before  his  Lordship  in  Godwin  v.  Mun- 
day,(m)  when  he  pronounced  the  like  decree  as  in  the  last  case.  And 
in  Walker  v.  Main,  (n)  the  testator  devised  real  property  to  his  wife 
for  life,  remainder  to  the  plaintiff,  in  trust  to  sell  and  distribute  the 
proceeds  among  his  children  and  grand-children,  at  twenty-one,  or 
marriage,  with  benefit  of  survivorship,  in  the  event  of  any  dying 
before  their  shares  became  payable.(o)  A  child  and  a  grandchild, 
after  attaining  twenty-one  and  marrying,  died  before  the  widow  ; 
and  their  shares  of  the  real  produce  were  claimed  by  their  per- 
sonal representatives.  And  Sir  Thomas  Plumer,  M.  R.,  decided  in 
their  favour. 

We  may  here  lastly  notice  the  case  of  Watkins  v.  Cheek,(p]  where- 
in a  legacy  charged  upon  real  and  personal  estate  was  given  to  a 
legatee,  to  vest  immediately  upon  the  death  of  the  testator,  but  to  be 
paid  to  the  legatee  on  attaining  twenty-one,  with  interest  in  the 
meantime  for  maintenance.  The  legatee  died  under  twenty-one. 
And  it  was  held  by  Sir  John  Leach,  V.  C.,  that  the  safest  construc- 
tion was,  that  the  testator  meant  to  express,  that  the  legacy  should 
not  sink  for  the  benefit  of  the  devisee  of  the  land,  if  the  legatee 
should  die  under  twenty-one. 


CHAPTER  XII. 

Of  charging   Legacies  upon   the  Real  Estate,  and  of 
Exoneration. 

HAVING,  in  the  preceding  chapter,  marked  the  distinctions  as  to 
the  vesting  of  legacies,  when  they  were  made  payable  out  of  the  per- 
sonal estate  only,  or  out  of  the  real  estate,  either  alone  or  in  con- 
junction with  the  personal  property ;  it  is  proposed  to  consider,  in 
the  present  chapter,  FIRST,  when  legacies  will  be  construed  as  given 
solely  out  of  the  real  estate  ;  SECONDLY,  when  that  estate  is  to  be 
considered  charged  only  with  their  payment ;  and  LASTLY,  as  to  the 

(m")  1  Bro.  C.  C.  191  and  see  Bay  ley  v,  Bishofi,  9  Ves.  6.  stated  ante,  p.  428. 
S.  P.  (n)  I  Jac.  &  Walk.  1.  7. 

(o)  See  ante,  p.  418.  (/»)  2  Sim.  &  Stu.  199. 

VOL.  i.  3  L 


446  Of  charging  Legacies  [Cn.  XII. 

application  of  those  funds  in  satisfaction  of  the  legacies.  In  treating 
of  these  matters,  the  following  arrangement  is  adopted  : 

SECT.  I.  When  Legacies  are  given  solely  out  of  the  Real 
Estate. 

SECT.  II.  When  Legacies  will,  and  will  not,  be  cpnsidered 
effectual  charges  upon  the  Real  Estate.     And — 

1. — Where  the  legacies  were  held  to  be  charges  on  the 
real  property. 

2 —  When  not  so  considered. 

3. — Of  charging  and  disposing  of  the  real  estate,  or  its 
produce,  by  codicils  or  paper-writings  not  attested 
according  to  the  Statute  of  Frauds. 

SECT.  III.  Of  Exoneration. 

1. —  When  the  personal  estate  is  first  liable  to  pay  debts 
and  legacies. 

2 —  When  the  real  estate  will  be  considered  the  primary 
fund  for  those  purposes. 

3. — -Jls  to  the  admission  of  parol  evidence  of  the  testa- 
tor's intention. 

4. —  When  the  personal  estate  is  exonerated  from  par- 
ticular debts  and  legacies,  and  not  from  debts  and 
legacies  generally. 

5. — When  the  personal  estate  is  not  exonerated  from 
paticular  debts  and  legacies — 

And  as  to  debts  not  of  the  testator's  own  contract- 
ing. 

6. — Where  a  part  of  the  personal  estate  is  specifically 
appropriated  to  pay  legacies  in  exoneration  of 
the  remainder. 

7. — As  to  the  exemption  of  the  personal  estate  from  pay- 
ment of  debts  and  legacies,  where  the  legatee  dies 
before  the  testator. 

8. — With  respect  to  the  liability  of  the  real  estate  to 
debts  and  legacies,  when  the  money  has  been 
once  raised,  but  misapplied 

SECT.  I.  When  Legacies  are  given  solely  out  of  the  Real 

Estate. 

Where,  from  the  terms  of  the  will,  it  clearly  appears  to  have  been 
the  testator's  intention,  that  the  fund  for  the  payment  of  legacies 
given  out  of,  or  made  charges  upon,  the  real  estate,  is  that  estate 
only  and  singly ;  it  alone  will  be  liable  to  those  demands. 

This  may  happen  in  the  following  instances ; — as  if  legacies  be 
given,  and  at  the  same  time  directed  to  be  paid  out  of  the  real  pro- 
perty ;(o)  or  where  the  real  estate  is  given  to  A.  either  inprcBsenti  or 

(a)  Amesbury  v.  Broivn,  1  Ves.  sen.  482. 


SECT.  I.]  upon  the  Real  Estate.  447 

infuturo,  he  paying  out  of  it  certain  legacies  ;(&)  or  if  the  land  be 
charged  with  such  payments  :(c)  in  each  case,  the  devised  estate  will 
be  the  only.fund  out  of  which  those  sums  are  to  be  paid.  The  rea- 
sons are  these ;  the  estate  in  the  one  case  is  expressly  encumbered, 
and  in  the  other  it  is  intended  to  be  divided  between  the  devisee  and 
legatees'.  In  the  last  instance,  the  estate  is  given  upon  condition 
that  the  devisee  make  the  specific  payments.  -He  takes  the  land 
cum  onere,  and  non  constat  the  estate  would  have  been  devised  to 
him,  unless  the  testator  had  conceived  that  the  legacies  would  have 
been  discharged  out  of  it. 

So  also,  where  a  legacy  is  given  out  of  real  property,  not  the  ab- 
solute estate  of  the  testator,  but  in  the  exercise  of  a.  power  of  appoint- 
ment, that  property  is  the  only  fund  liable  to  the  bequest  ;(d)  except 
the  appointor  manifest  in  his  will  an  intention  (as  in  Savilev.  Black- 
et  before  stated,)(e)  that,  in  failure  of  the  specific  estate,  his  own 
should  be  subject  to  the  legacy. 

The  real  estate  will  also  be  the  only  fund  for  payment,  when  it  is 
given  to  trustees  in  trust  out  of,(/)  or  to  apply  the  rents  and  profits, 
or  the  produce  from  a  sale  or  mortgage,  of  the  property,  in  paying 
particular  sums  of  money ;  because  these  sums  have  not,  like  debts, 
any  existence  independent  of  the  will  which  bequeaths  them  as  spe- 
cific parts  of  the  particular  fund  referred  to  ;  and  out  of  which  alone 
they  are  given  and  payable. (g)  Instances  of  this  kind  have  been 
produced  in  the  third  chapter,  which  treats  of  specific  legacies. (A) 

A  distinction,  indeed,  must  be  noticed  between  the  devise  of  lands 
to  a  person  charged  with,  or  with  a  direction  to  pay,  particular  sums 
of  money  ;  or  to  trustees,  in  trust  to  raise  and  pay  particular  sums  ; 
and  when  the  charge  or  trust  is  for  satisfaction  of  debts  or  legacies 
generally.  In  instances  of  the  first  kind,  we  have  seen  that  the  real 
estate  is  solely  liable  to  the  demands  ;  but  in  instances  of  the  second 
description,  the  real  will  be  only  answerable  in  aid  of  the  personal 
estate,  which  is  the  primary  and  natural  fund  appointed  by  law  to 
pay  debts  and  legacies.  Suppose,  then,  a  devise  of  lands  to  B., 
charged  with,  or  he  paying  all  debts  and  legacies  ;(i)  or  a  devise  to 
trustees,  to  pay  debts  and  legacies,  remainder  to  C. ;  in  each  in- 
stance, the  primary  fund  applicable  to  those  demands  is  the  general 
personal  estate,  as  will  be  shown  in  the  third  section. 

But  when  the  real  estate  is  not  expressly  charged  with  debts  and 

(6)  Hutchins  v.  Foy,  ante,  p.  438.  Jennings  v.  Looks,  ante,  p.  434.  Loivther  v. 
Condon,  ante,  p.  438.  Ernes  v.  Hancock,  ante,  p  439.  Hodgson  v.  Raivson, 
ante,  p.  440.  Tunstall  v.  Brachen,  ante,  p.  441.  Embrey,  v.  Martin,  ante,  p. 
441.  Manning  v.  Herbert,  ante,  p.  442.  Jeal  v.  Tichener.  ante,  p.  442.  Pawsey 
v.  Edgar,  ante,  p.  444.  Thompson  v.  Dow,  ante,  444.  Morgan  v.  Gardiner, 
ante,  p.  444.  Damson  v.  Killet,  ante,  p.  444.  Godwin  v.  Munday,  1  Bro.  C.  C, 
391.  Walker  v.  Main,  1  Jac.  &  Walk.  1-7. 

(c)  Clarke  v.  Ross,  ante,  443.   and  sec.  1  Ves.  &  Bea.  276.  and  ante,  sect.   1. 
Chap.  IX.  also,  Gittins  v.  Steel,  1  Swanst.  24.  stated  infra,  and  Morgan  v.  Gar- 
diner, ante,  p.  444. 

(d)  Pawled  v.  Paivlett,  ante,  p.  432.     Phipps  v.  Lord  Afulgrave,  3  Ves.  613. 

(e)  Chap.  III.  sect.  3.  p.  153.  (  f)    Hartley  v.  Hurle,  5  Ves.  540.  stated  infra. 
(^  By  Sir  W.  'Grant  in  Brydges  v.  Phillips,  6  Ves.  571.  and  by  Lord  Eldon 

in  Gittina  v.  Steele,  1  Swanst.  29.  Spurway  v.  Glynn,  9  Ves.  483.  stated  infra. 
Hancojcv.  Abbay.  11  Ves.  179.  185.  186.  stated  infra. 

(/:>  See  the  whole  of  sect.  3.  Chap.  III.  p.  151.  and  infra,  sect.  3.  sub-div.  4.  . 

(i)  Ambl.  38.  Mead  v.  Hide,  2  Vern.  120.  Lovel  v.  Lancaster,  ibid.  183. 
Gower  \.  Mead,  Pre.  Ch.  2.  Bridgman  v.  Dove,  3  Atk.  201.  Bromhalev. 
Willbraham,  cited  Forrest.  204. 


448  Of  charging  Legacies.  [Cn,  XII. 

legacies,  or  with  legacies,  and  the  fact  of  charge  or  no  charge  is  to 
be  inferred  from  an  interpretation  of  the  contents  of  the  will,  the 
construction  in  those  cases  has  been  attended  with  Considerable 
nicety.  We  shall  therefore  proceed  to  examine — 

SECT.  II.  When  Legacies  will,  and  will  not,  be  considered  as 
effectual  charges  upon  the  Real  Estate,  in  the  absence  of  ex- 
press declaration  to  that  effect. 

HEIRS  have  always  been  looked  upon  with  favour  by  courts  of  jus- 
tice, which  have  established  a  general  rule  of  construction  to  their 
advantage ;  viz.  "  that  plain  words  are  required  to  disinherit  them."(fc) 
Such  being  the  general  rule,  words  equally  plain,  or  indicating  a 
violent  presumption  of  intention,  are  necessary  to  create  legal  or 
equitable  charges  upon  their  estates.  However,  general  introducto- 
ry or  prefatory  words  will  have  that  effect  in  favour  of  creditors,(l) 
except  the  extent  of  the  expressions  be  qualified,  as  in  this  manner  : 
"  I  direct  that  all  my  just  debts  and  funeral  expenses  be  paid  by  my 
executoi's ;"  and  the  real  estate  be  specifically  devised. (m)  But  in 
dubious  cases,  a  court  of  equity  will  incline  in  favour  of  a  charge  for 
the  benefit  of  creditors, (n}  subjecting  to  it  not  only  the  freehold  pro- 
perty of  which  the  testator  was  seised,  but  also  his  copyhold,  (o) 
Whether  the  same  expressions,  which  would  inferentially  create  a 
charge  of  debts  upon  the  real  estate,  will  have  the  like  effect  in  re- 
lation to  legacies,  is  a  subject  on  which  there  has  been  a  difference 
of  opinion.  We  shall  therefore  consider — 

1 .  Instances  where  legacies  were  held  to  be  charged  upon  the 
real  estate  under  a  fair  construction  of  the  will. 

In  Tompkins  v.  Tompkins,(p)  it  was  determined,  that  the  words 
"  after  debts  and  legacie^s  paid,"  connected  with  the  manner  of 
giving  the  legacies  and  the  real  estate,  were  sufficient  to  charge 
the  legacies  on  that  fund.  The  word  after  occurs  in  many  of  the 
cases,  yet  not  in  the  sense  of  an  adverb  of  time,  but  in  the  sense 
of  "  subject"  OT  "  liable."(?) 

In  Tompkins  v.  Tompkins,  Mr.  Tompkins  bequeathed  to  his 
daughter  B.,  and  two  other  daughters,  5001.  each ;  to  be  paid  at 
their  respective  ages  of  twenty-one,  or  days  of  marriage,  out  of  his 
stock.  He  then  devised  the  rents  of  his  real  estates  to  his  wife  for 
life,  in  lieu  of  dower,  for  the  support  and  education  of  his  children, 
and  raising  and  making  up  the  portions  of  daughters,  and  proceed- 
ed thus :  "  after  my  debts  and  legacies  paid,  I  give  and  devise  all 

(£)  2  P.  Will.  188. 

(/)  Bawdier  v.  Smith,  Pre  Ch.  264.  Webb  v.  Webb,  Barnard.  Rep.  89.  Hat- 
ton  v.  Mchol,  Forrest  110.  Harris  v.  Ingledew,  3  P.  Will.  91.  96.  King  v.  Xing, 
ibid.  359.  Legh  v.  Warrmgton,  1  Bro.  Parl.  Ca.  511.  8vo.  ed.  Beachcroft  v. 
Beachcroft,  2  Vern.  690.  Stqnger  v.  Tryon,  and  fay  v.  Toivnsend,  2  Vern. 
709.  ed.  by  Raithby,  in  notes.  Godolfihin  v.  Penneck,  2  Ves.  sen.  271,  Thomas 
v.  Britnell,  ibid.  313.  Clark  v.  Seivell,  3  Atk.  100.  Williamsv.  ChUty,  3  Ves. 
552.  fihallcross  v.  Finden,  ibid.  739.  See  also  Clifford  v.  Lewis,  6  Mod.  33.  and 
the  cases  there  cited. 

(m)  Davis  v.  Gardiner,  2  P.  Will.  187.  Bridges  v.  Landen,  stated  3  Ves.  550. 
Keehng  v.  Broion,  5  Ves.  359.  Powell  v.  Robins,  7  Ves.  209. 

(n}  2  Ves.  &  Bea.  273.  Kidney  v.  Coussmaker,  1  Ves.  jun.  436.  7  Bro.  Parl. 
Ca.  573.  8vo.  ed.  S.  C.  2  Ves.  jun.  267. 

fo)  Coombes  v.  Gibson,  1  Bro.  C.  C,  273.     Kentish  v.  Kentish,  3  Bro.  C.  C.  257. 

(  /O  Pre.  Ch.  397.  (?)  See  Batson  v.  Lindegreen,  2  Bro.  C.  C.  94. 


SECT.  II.]  upon  the  Real  Estate.  449 

my  land,  tenements  and  hereditaments,  to  my  son  C.  and  his  heirs." 
The  wife  and  son  were  appointed  executors.  At  the  testator's 
death,  his  personal  estate  amounted  to  no  more  than  100/.  The 
wife  entered  upon  the  real  estates,  and  two  of  her  daughters,  on 
marriage,  received  their  portions.  The  wife  died,  and  J&.,  the  re- 
maining daughter,  sought  to  have  her  portion  raised  out  of  the 
lands ;  which  was  resisted  by  C.,  contending  that  the  portion  was 
only  payable  out  of  the  rents  which  accrued  during  the  wife's  life. 
But  the  Court  was  of  opinion,  that  in  this  case  C.'s  estate  was  lia- 
ble to  the  demand  ;  as  the  several  gradations  in  the  will,  showed 
the  portions  were  in  all  events  to  be  made  good  to  the  daughters. 
The  testator,  therefore,  first  charged  the  portions  on  his  stock,  and 
secondly  directed  that  they  should  be  made  good  out  of  the  surplus 
of  his  rents,  during  the  life  of  his  wife  ;  and  lastly  he  devised  the 
lands  to  C.,  subject  to  them,  in  giving  the  estates  to  him  after  his 
debts  and  legacies  paid ;  which,  the  Court  said,  in  a  will,  amount- 
ed to  a  charge  on  the  lands  ;  because  C.  was  not  to  have  them  be- 
fore the  legacies  were  satisfied. 

So  in  Trott  v.  Vernon,(r]  the  words  were,  "  Imprimis,  I  will  and 
devise  that  all  my  debts,  legacies  and  funerals  shall  be  paid  and 
satisfied  in  the  first  place.  Item,  I  give  and  devise"  &,c.  The 
testator  then  proceeded  to  dspose  of  his  real  and  personal  estates, 
and  the  decision  was  in  favour  of  the  charge  upon  those  words  ; 
the  Court,  as  in  Hassell  v.  Hassell,  below  stated,  laying  considera- 
ble stress  upon  the  word  "  devise"  being  applied,  as  well  to  the 
charge  of  debts  and  legacies,  as  to  the  disposition  of  the  real 
estate. 

Also  in  Jiwbrey  v.  Middleton,(s)  the  will  began,  "  as  to  all  my 
worldly  estate,  I  give  and  dispose  thereof  in  the  manner  follow- 
ing." Then  the  testator  gave  general  legacies,  and  several  annui- 
ties for  lives,  to  be  paid  by  his  executor,  and  he  devised  the  rest 
and  residue  of  his  goods,  chattels,  and  estates  to  his  nephew,  Mr. 
Middleton  (who  was  his  heir,}  appointing  him  executor.  The  ques- 
tion was,  whether  the  real  estate  was  well  charged  with  the  lega- 
cies and  annuities,  in  aid  of  the  personal  fund;  And  Lord  Cowper 
determined  in  the  affirmative. 

His  Lordship's  decree  was  founded  upon  these  reasons;  first,  be- 
cause it  appeared  from  the  introduction  to  the  will,  that  the  testator 
intended  to  dispose  of  all  his  estate,  both  real  and  personal.  And 
secondly,  that,  in  making  the  disposition,  he  did  it  in  a  way,  which 
showed  his  meaning  that  both  funds  should  be  liable  to  the  legacies 
and  annuities  ;  for,  having  set  out  in  his  will  by  declaring  that  he 
intended  to  dispose  of  his  worldly  substance  in  manner  following,  &c. 
and  immediately  proceeding  to  give  legacies  and  annuities,  and 
then  concluding  with  a  devise  of  the  residue  of  both  funds  to  his 
heir  and  sole  executor,  it  was  obvious  that  the  term  "  residue,"  con- 
nected with  the  introductory  clause,  the  intermediate  gifts  of  lega- 
cies and  annuities,  and  the  relationship  of  the  devisee,  who  was  also 
sole  executor,  showed  distinctly, that  the  nephew,  in  the  characters 
of  residuary  devisee  and  legatee,  was  intended  to  take  neither  the 

(r)  Pre.  Ch.  430.     2Vern.  708.  S.  C.  and  see  2  Ves.  jun.  331. 
(s)  4  Vin.  Abr.  460.  pi.  15.     2  Eq.  Ga.  Abr.  497.  pi.  16.  S.  C. 


450  Of  charging  Legacies  [Cn.  XII. 

* 

one  estate  nor  the  other,  until  those  legacies  and  annuities  were 
satisfied. 

Upon  the  principle  of  the  last,  was  decided  the  case  of  Mcock  v. 
Sparhawk,(t)  in  which  the  testator  began  his  will  in  these  words : 
"  As  touching  my  worldly  goods,  I  dispose  thereof  as  follows,"  &c. 
He  then  devised  his  real  estate,  to  his  heir  in  fee,  gave  several  lega- 
cies, and  appointed  his  heir  sole  executor,  with  a  direction  to  per- 
form his  will.(u)  It  was  adjudged,  that  such  devise,  and  such  di- 
rection amounted  to  a  sufficient  manifestation  of  the  testator's  inten- 
tion to  charge  the  real  estate  devised  to  his  heir  with  the  payment 
of  legacies. 

The  following  case  appears  to  have  been  determined  upon  the 
abstract  principle,  that  were  the  real  estate  is  combined  with  the 
personal,  i.  e.  where  they  are  made  to  constitute  one  entire  fund, 
the  former  will  be  liable  to  all  the  burthens  of  the  latter,(a?)  and  be 
charged  with  debts  and  legacies. 

Thus  in  Bench  v.  Biles,(y)  Mr.  Hampton  devised  and  bequeathed 
all  his  real  and  personal  estates  to  his  wife  for  life,  blending  them 
into  one  fund,  for  her  use.  After  her  death  he  gave  general  lega- 
cies, and  the  remainder  of  his  real  and  personal  estates  to  his  two 
nephews.  It  was  declared  that  the  legacies  were  charges  upon  the 
real  property. 

In  the  next  authority,  although  Lord  Thurlow^s  judgment  fluc- 
tuated, yet  he  finally  determined  in  favour  of  the  charge. 

The  case  alluded  to  is  Minor  v.  Wicksteed,(z]  where  the  testator 
after  charging  his  personal  estate,  not  specifically  bequeathed,  with 
debts  and  funeral  expenses,  gave  specific  parts  of  it  to  his  wife  ab- 
solutely, with  a  legacy  of  twenty  guineas.  He  also  gave  to  her 
other  articles  of  personalty  for  life,  exempt  from  funeral  expenses 
and  legacies,  remainder  to  his  wife's  niece,  Felicia,  for  life,  and 
after  the  death  of  the  survivor,  the  articles  were  to  fall  into  the  re- 
sidue. He  then  gave  a  legacy  of  five  guineas,  and  devised  his  real 
estates  to  his  wife  for  life,  remainder  to  Felicia  for  life,  with  re- 
mainder to  John  Wicksteed  in  fee  ;  a  subject  (as  to  the  last  re- 
mainder) and  charged  with  the  payment  of  such  debts,  funeral  ex- 
penses and  legacies,  as  that  part  of  his  personal  estate,  which  was 
therein  made  liable  thereto,  should  not  reach  to  pay."  The  tes- 
tator, after  charging  his  personal  estate,  with  a  small  annuity,  di- 
rected his  executors  (one  of  whom  was  Mr.  Wicksteed J-to  place  at 
interest  the  surplus  of  his  personal  estate,  after  payment  of  his  debts 
and  legacies  aforesaid,  funeral  and  other  expenses  incident  to  his 
will,  in  trust  for  his  wife  for  life,  remainder  to  Felicia  for  life,  and 
after  the  death  of  the  survivor,  he  bequeathed  the  surplus  as  follows : 
First,  he  gave  four  legacies  payable  in  six  months  after  the  death 
of  the  surviving  tenant  for  life :  and  secondly,  he  gave  the  residue 
of  it,  after  payment  of  the  legacies  before  bequeathed,  to  Mr.  Wick- 
steed. The  personal  estate  being  deficient  to  answer  debts,  &c. 
the  question  was,  whether  the  real  estate  was  charged  with  the  four 

(0  2  Vern.  228.  ed.  bv  Raithby.         («)  Cary  v.  Cary,  2  Scho.  8c  Lefroy.  188. 
fc)  1  Ves.  jun.  444.    " 

(y)  4  Mad.  187.  and  see  Kidney  v  Coussmaker,  1  Ves.  jun.  436.  2  Ves.  jun.  267. 
(z)  3  Bro.  C.  C.  627. 


SECT.  II.]  upon  the  Real  Estate.  451 

legacies0]  If,  as  Lord  Thurlow  at  first  thought,  these  legacies 
were  given  as  parts  of  a  supposed  residue  of  personal  property,  the 
real  Estate  would  not  have  been  liable.  But  his  Lordship  was 
finally  of  opinion,  that  the  bequest  to  Wicksteed  was  alone  residue. 
The  legacies  therefore  being  particular,  he  considered  them  to  be 
well  charged  upon  the  real  estate  by  the  will,  in  aid  of  the  personal 
fund.  And  it  seems  clear  from  the  context,  that  Mr.  Wicksteed, 
who  was  both  residuary  devisee  and  legatee,  and  an  executor,  should 
not  derive  any  advantage  from  either  estate  until  the  legacies  were 
satisfied. 

It  seems,  that  parol  evidence  of  the  testator's  intention  to  create 
a  charge  upon  the  lands  was  given  in  the  last  case.  Such  evidence, 
however,  does  not  appear  to  have  been  acted  upon  by  the  Court. 
And  if,  as  it  has  been  determined  by  a  variety  of  authorities,  a  tes- 
tator's intention  is  to  be  alone  collected  from  the  contents  of  his 
will,  parol  evidence  is  inadmissible  in  the  present  instance. 

Hassel  v.  Hassel,{a]  bears  a  very  near  resemblance  to  the  case  of 
Aubrey  v.  Middleton,  before  stated  ;  and  the  observations  made  upon 
the  latter,  equally  apply  to  the  former.  There  the  testator  began 
bis  will  in  this  manner:  "As  touching  and  concerning  my  worldly 
estate,  I  give,  devise,  and  bequeath  as  follows :  first,  I  give  my  house- 
hold goods,  &c.  to-my  wife  for  life;  I  give,  devise,  and  bequeath  to 
my  daughter,  Frances,  300Z.  at  twenty-one."  and  after  giving,  de- 
vising and  bequeathing  other  legacies,  the  testator  thus  proceeded : 
"  I  give,  devise,  and  bequeath  to  my  son,  Halford,  all  and  singular 
my  real  and  personal  estates,  not  herein  disposed,  to  him,  his  heirs 
and  assigns."  It  was  contended  on  behalf  of  the  legatees,  that  the 
testator  having  expressly  declared  his  intention  to  dispose  of  all  his 
worldly  estate,  and  used  in  the  gifts  of  the  legacies  to  his  children, 
the  word  "  devise,"  which  was  applicable  to  real  estate  only,  and 
having,  by  the  residuary  clause,  given,  devised,  and  bequeathed  all 
his  real  and  personal  estates,  not  therein-before  disposed  of;  and 
having  also  directed  the  legacies  to  .be  paid  by  his  executor,  to 
whom  he  had  given  his  real  estate,  it  was  manifestly  his  intent  and 
meaning  to  charge  the  legacies  upon  that  estate.  And  Lord  Ba- 
thurst  was  of  the  same  opinion,  and  so  decreed. 

So  in  Austen  v.  Halsey,(b]  Lord  Eldon  laid  hold  of  the  circum- 
stance of  the  savings  and  accumulations  of  real  and  personal  es- 
tates being  charged  with  legacies,  in  one  event  which  did  not  hap- 
pen, to  extend  the  charge  on  the  real  savings  and  accumulations  in 
another  which  did  happen. 

In  trie  case  just  referred  to,  Mr.  Austen  bequeathed  some  legacies 
and  portions  to  his  daughters,  Frances  and  Elizabeth,  if  they  at- 
tained twenty-one,  with  benefit  of  survivorship  upon  either  of  them 
dyin£  under  that  age  ;  directing  his  trustees  to  allow  them  a  proper 
maintenance  out  of  the  rents  and  interest  of  his  real  and  personal 
property.  He  then  devised  to  the  trustees  his  real  and  personal  es- 
tates, to  convey  and  assign  to  his  son  Henry,  absolutely,  at  twenty- 
one  or  upon  marriage  with  consent,  or  in  strict  settlement,  if  he 
married  under  twenty-one  without  consent ;  and  in  default  of  issue, 

or  if  the  son  died  under  twenty-one,  without  ever  having  been  mar- 

•» 
(a)  2  Dick.  527.  (£)  6  Ves,  475. 


452  Of  charging  Legacies  [Cn.  XII. 

ried,  remainder  to  Frances  absolutely,  in  case  she  attained  twenty- 
three  or  married  with  consent,  or  in  strict  settlement,  if  she  married 
under  that  age  without  consent;  and  in  default  of  issue,  or 'upon 
marriage  without  consent  under  twenty-three,  remainder  to  his  sis- 
ter Elizabeth,  for  the  like  interests  as  were  devised  to  Frances,  &c. 
And  the  testator  directed  his  trustees,  in  the  event  of  his  son's  death 
under  twenty-one,  or  his  marriage  sooner  without  consent,  to  convey 
his  leasehold  and  personal  estates,  with  all-  the  savings  and  accu- 
mulations, which  should  be  made  from  the  produce  of  his  real  and 
personal  property,  after  payment  of  legacies,  &c,  to  his  two  daugh- 
ters in  equal  shares,  to  be  vested  interests  and  delivered  to  them  at 
their  ages  of  twenty-three,  or  upon  their  previous  marriages  with 
consent,  with  benefit  of.  survivorship ;  and  if  neither  of  them  at- 
tained twenty-thrfee,  nor  previously  married  with  consent,  he  gave 
the  whole  savings  and  accumulations  to  the  persons  who,  at  the  sur- 
vivor's death,  should  be  entitled  to  the  possession  of  the  real  estates. 
Before  the  son  attained  the  .age  of  twenty-one  or  married,  his  sis- 
ters, also  minors,  applied  to  the  Court  of  Chancery  to  have  their 
legacies  raised  and  secured ;  and,  the  personal  fund  being  deficient, 
the  question  was,  whether  the  savings  and  accumulations  of  the  rents 
during  the  son's  minority,  were  charged  with  the  legacies']  since 
the  only  charge  expressed  in  the  will  Was  upon  the  son's  dying  un- 
der twenty-one,  or  his  marrying  without  consent,  neither  of  which 
events  had  happened.  And  Lord  Eldon  was  of  opinion,  upon  the 
intention  appearing  from  the  whole  of  the  will,  that  the  testator 
meant  the  savings  and  accumulations  to  be  charged  in  the  event  that 
had  happened;  although  the  words  "after  payment  of  legacies" 
were  not  in  the  clause  giving  the  savings  to  the  son,  as  in  the  clause 
giving  them  to  the  daughters.  And  his  Lordship  inferred  from  the 
limitation  over  of  the  personal  fund,  with  the  savings  and  accumu- 
lations from  it,  and  the  real  estate,  if  his  daughters  died  before  they 
were  entitled  to  receive  them,  that  the  testator  intended  whoever 
took  the  fund,  should  do  so  .subject  to  the  legacies. 

Closely  allied  in  principle  to  the  last  authority  is  the  case  of  Webb 
v.  Webb,(c)  in  which  General  Webb  charged  his  real  estates  with 
the  payment  of  two  annuities,  the  one  to  his  eldest  son  Edmund, 
and  the  other  to  Edmund's  wife,  after  his  death.  The  testator  then 
appointed  his  manors  of  H.  to  his  second  son  Borlase,  in  strict  set- 
tlement, and  devised  all  his  other  real  estates  (of  which  he  had  none) 
together  with  his  personal  estate,  to  Borlase  absolutely,  charged 
with  debts  and  legacies;  which  devise  was  immediately  followed  by 
the  bequests  of  portions  to  his  other  younger  children,  to  be  vested 
at  twenty-one  or  marriage,  and  paid  within  two  years  after  the  testa- 
tor's death  ;  the  intermediate  interest  to  be  paid  by  Borlase.  And  it 
was  declared,  that  if  any  younger  child  died  before  the  portion  be- 
came vested,  or  married,  during  his  life,  the  same  should  sink  for 
the  benefit  of  Borlase.  The  testator,  not  having  any  other  real  es- 
tate than  the  manors  of  H.  which  were  not  expressly  charged  with 
the  portions,  the  question  was,  whether  those  manors  were  by  impli- 
cation charged  with  them.  And  Parker,  C.  J.  determined  in  the 
affirmative,  who  considered  the  younger  children  as  creditors,  and 

« 
(c)  Barnard.  Rep.  86. 


SECT.  II.]  upon  tht  Real  Estate.  453 

said,  that  where  a  testator  in  the  beginning  of  his  will  declared, 
that  he  was  disposing  of  all  his  worldly  estate,  and  then  gave  di- 
rection that  his  debts  'should  be  paid,  the  debts  became  a  charge 
upon  the  real  as  well  as  the  personal  estate. 

In  the  last  case  it  was  objected  to  the  charge,  that  the  testato: 
having  used  proper  words  to  subject  the  real  fund  to  the  payment  of 
the  annuities,  it  was  to  be  inferred,  that,  as  he  omitted  them  in  re- 
gard to  the  portions,  his  meaning  was  not  the  same ;  but  the  Court 
answered,  that  a  testator  might  use  express  words  of  charge  in  one 
part  of  his  will,  and  create  a  charge  by  implication  in  another.  An 
implication  which  seems  to  be  clearer  in  the  present  case  than  in 
Austen  v.  Halsey  before  stated  ;  for  in  this  instance,  although  the 
settled  estates  were  not  expressly  charged  with  the  portions,  as  the 
testator's  other  estates  would  have  been,  had  he  possessed  any,  yet 
it  clearly  appeared  from  the  clauses  which  directed  Borlase,  the  de- 
visee of  the  settled  estates,  to  pay  interest  upon  the  portions,  and 
provided  for  the  sinking  of  the  portions  of  children  dying  before  tak- 
ing vested  interests  for  the  benefit  of  Borlase,  that  the  testator  in- 
tended to  charge  as  well  the  settled  as  his  other  real  estates  with 
their  payment. 

We  may  here  observe,  that  where  a  testator  charges  all  his  real 
estates  with  the  payment  of  his  legacies,  all  will  be  equally  liable  to 
contribute  ;  no  preference  being  allowed  to  the  estates  particularly 
devised  over  those  comprehended  in  the  residuary  devise,  since  all 
devises  of  real  estates,  whether  particular  or  residuary,  are  equally 
specific.  This  was  decided  in  the  recent  case  of  Spong  v.  Spong, (d) 
where  an  attempt  was  made  to  establish  a  preference  in  favour  of  the 
former  class  of  estates,  in  analogy  to  the  case  of  a  specific  legacy, 
which  is  not  subject  to  contribution  with  the  general  legacies,  where 
there  is  a  deficiency  of  assets.  From  this  decree  of  the  Lord  Chief 
Baron,  the  defendant  Spong  has  appealed  to  the  House  of  Lords. 

But  the  real  estate  may  be  generally  charged  with  debts  and  le- 
gacies, with  an  exception  of  a  particular  interest  limited  in  the 
whole  or  in  part  of  it,  when  the  intention  is  clear  in  favour  of  the 
exemption. 

Thus  in  Birmingham  v.  Kirwan,(e)  the  testator,  after  vesting  his 
freehold  property  in  trustees,  to  pay  his  debts  and  raise  a  sum  of 
money,  gave  his  demesne,  and  his  house,  offices,  and  garden,  in  trust 
for  his  wife  for  life,  at  the  yearly  rent  of  13s.  an  acre,  she  keeping 
the  house,  &c.  in  repair,  and  not  leasing  the  premises,  except  to  the 
person  in  possession  of  the  remainder  of  his  estates.  The  residue  of 
his  lands,  "  subject  to  the  payment  of  his  debts  and  legacies  as  afore- 
said," he  devised  to  A.  for  life,  remainder  to  B.  in  fee ;  and  be- 
queathed all  his  personal  estate,  except  his  stock  of  cattle  &c.  to  his 
executors,  to  be  applied  in  exoneration  of  his  real  property  ;  first  in 
the  payment  of  debts,  and  then  of  legacies.  Lord  Redesdale  deter- 
mined, that  as  the  testator's  intention  not  to  charge  the  demesne, 
&c.  during  his  wife's  life  with  debts  and  legacies,  clearly  appeared 
from  the  whole  of  the  will,  and  more  particularly  in  the  direction  as 
to  the  enjoyment  by  her,  and  the  devise  of  the  residue  of  the  real  es- 

(d)  1  Younge  &  Jerv.  Exch.  R.  300.  (e)  2  Scho.  &  Lefroy,  444.  448. 

VOL.  i.  3  M 


454  Of  charging  Legacies  [Cn.  XII. 

tates  expressly  subject  to  the  payment  of  debts  and  legacies,  the 
demesne,  &c.  were  not  charged  during  the  widow's  life  with  those 
demands. 

2.  When  legacies  were  held  not  to  be  charges  upon  the  real  es- 
tate. 

The  preceding  cases,  it  will  have  been  observed,  afforded  solid 
grounds  for  inferring  the  intention  of  testators  to  charge  the  real  fund 
or  its  produce  with  legacies  in  aid  of  the  personal  estate.  The  real 
property  was  devised,  and  there  were  expressions  connected  with 
that  devise,  which  afforded  a  reasonably  plain  inference,  that  the 
land  or  its  produce  should  be  taken,  subject  to.  the  legacies.  But 
where  the  intention  to  subject  the  real  estate  to  legacies  is  merely 
probable,  or  conjectural,  and  there  are  no  expressions  of  charge,  ex- 
cept such  as  are  capable  of  being  otherwise  satisfied,  a  court  of  equity 
will  not  act  upon  that  conjecture  or  private  persuasion,  to  effect  the 
real  estate  with  the  payment  of  the  legacies.  When  indeed  an  un- 
provided child  or  creditors  are  the  persons  endeavouring  to  establish 
the  charge,  the  Court  will  incline  in  their  favour,  if  the  inference  of 
intent  to  charge  be  dubious,  as  before  observed ;  but  where  the 
question  is  between  mere  voluntary  legatees  and  the  heir  or  devisee, 
it  seems  that  the  Court  will  require  satisfactory  conviction  of  the  in- 
tent to  charge  the  real  fund  with  the  legacies  before  they  subject  it 
to  those  demands. (/)  Accordingly,  if  a  testator  commence  his  will 
by  the  introductory  words  "  as  to  all  my  worldly  estate,  I  dispose  of 
the  same  as  follows,  after  legacies  paid,"  and  then  he  gave  legacies, 
bequeath  personal  estate  in  the  form  of  residue,  and  devise  his  real 
estate  ;  in  such  a  case  the  intention  to  charge  the  land,  implied 
from  the  introductory  words,  is  repelled  by  the  contrary  implication 
arising  from  the  bequest  of  a  personal  residue  which  the  testator 
supposed  would  remain  after  satisfaction  of  debts  and  legacies. (g) 
The  link  of  connection,  therefore,  between  the  introductory  words 
and  the  devise  of  the  real  estate  (which  existed  in  the  preceding 
cases,)  is  interrupted  and  broken ;  and  the  introductory  expressions 
are  quite  consistent  and  satisfied  by  imputing  to  the  testator  the  in- 
tention that  he  meant  his  legacies  to  be  discharged  out  of  his  per- 
sonal property,  and  that  estate  only  ;  consequently,  there  is  no  foun- 
dation for  a  court  of  equity  to  raise  a  charge  upon  the  real,  in  aid  of 
the  personal  fund,  by  implication.  The  following  case  is  an  au- 
thority upon  this  point. 

In  Davis  v.  Gardiner,(h)  Mr.  Gardiner  began  his  will  in  this  man- 
ner :  "  As  to  my  worldly  estate,  I  dispose  of  the  same  as  follows : 
after  my  debts  and  legacies  paid."  He  then  gave  legacies  to  chil- 
dren, payable  at  twenty-one,  or  upon  marriage  with  consent,  direct- 
ing intermediate  interest  to  be  paid  to  them  by  his  executors.  And 
after  all  his  legacies  paid,  he  beqeathed  the  residue  of  his  personal 
estate  to  his  son,  to  whom  he  devised  his  real  estate  in  fee,  with  a 
limitation  over  to  his  (the  testator's)  daughters,  if  the  son  died  be- 
fore them  without  issue.  Under  these  dispositions  Lord  Maccles- 
field  determined,  that  the  legacies  were  not  charges  upon  the  real 
fund.  First,  because  the  bequest  of  the  personal  residue  after  debts 

-  ^  Vide  Minor  v  Wicksteed> ante'  P- 450> 


SECT.  II.]  upon  the  Real  Estate.  455 

and  legacies  paid  was  inconsistent  with  an  intent  to  charge  the 
lands  with  legacies ;  and,  secondly,  because  the  interest  of  the  lega- 
cies was  directed  to  be  paid  by  the  executors;  a  circumstance  which 
his  Lordship  considered  to  be  a  material  feature  in  the  case. 

The  next  case  is  remarkable  in  the  circumstance  of  Lord  Mvan- 
ley,  M.  R.  referring  to  the  distinction  between  debts  and  legacies, 
in  regard  to  the  requisite  evidence  of  intention  to  create  charges  of 
them  upon  real  estates.  The  principle  extracted  from  the  case  is 
this :  That  the  discharge  of  debts  being  a  moral  obligation  and  bind- 
ing upon  the  conscience  of  a  testator,  a  court  of  equity  will  lay  hold 
of  the  slightest  inferences  of  intention  to  pay  them,  and  effectuate 
it  by  charging  the  real  estate  ;  but  that,  legacies  being  purely  volun- 
tary, the  reason,  which  induces  the  Court  to  struggle  in  favour  of 
creditors,  to  make  the  charge,  does  not  apply  at  the  instance  of 
legatees. 

The  case  alluded  to  is  Kightley  v.  Kightley, (i]  in  which  the  intro- 
ductory words  were,  "  First,  I  will  and  direct  that  all  my  legal  debts, 
legacies  and  funeral  expenses  shall  be  fully  paid  and  discharged." 
Then  the  testator  gave  legacies,  and  devised  his  real  estate.  And 
Lord  Mvanley  was  of  opinion,  that  the  introductory  clause  was  not 
of  itself  sufficient  to  charge  the  legacies  upon  the  real  fund,  and 
that  there  was  nothing  subsequently  in  the  will  showing  the  inten- 
tion of  the  testator  to  make  the  charge,  so  as  to  authorize  the  Court 
to  declare  that  the  legacies  ought  to  be  raised  out  of  the  real  fund, 
to  the  loss  and  disappointment  of  the  specific  devisees. 

In  a  subsequent  case  of  Williams  v.  Chitty,(k)  Lord  Rosslyn  ad- 
verted to  the  principle  laid  down  by  the  Master  of  the  Rolls  in  the 
last  case,  and  declared,  "  he  did  not  know  how  to  state  the  differ- 
ence," in  reference  to  charges  of  debts  and  legacies  upon  real  estate. 
The  case  last  referred  to  proves,  that  expressions  in  a  will  of  a 
desire  that  debts  should  be  paid,  will  be  construed  into  a  charge 
upon  the  real  estate ;  so  that  in  Kightley  v.  Kightley,  had  the  claim 
been  made  by  the  simple  contract  creditors,  Lord  Mvanley,  it  is 
presumed,  would  have  decided  in  their  favour,  upon  the  surmised 
intention  of  the  testator.  If,  then,  the  testator  must  be  supposed  to 
have  meant  in  that  case  to  charge  his  lands  with  debts,  it  seems  to 
be  a  natural  inference  that  he  must  have  entertained  a  similar  inten- 
tion in  regard  to  legacies,  since  they  are  comprehended  in  the  same 
clause.(l)  It  is  true  that  in  particular  cases  there  is  a  great  differ- 
ence between  debts  and  legacies,  in  consequence  of  the  latter  owing 
their  existence  to  the  will,  whilst  the  former  exist  independently  of 
that  instrument.  But  it  would  be  carrying  the  principle  of  that  dis- 
tinction to  an  unreasonable  length,  if  it  were  allowed  the  effect  of 
raising  different  and  contradictory  inferences  of  intention  in  a  testa- 
tor, when  debts  and  legacies  are  included  in  the  same  sentence ;  viz. 
that  the  debts  should  be  a  charge  upon  the  land,  and  the  legacies 
no  charge  :  an  inconsistency  that  does  not  follow  a  determination 
against  legacies  being  a  charge  upon  the  real  estate,  when  they 
alone  are  mentioned  in  a  clause  so  worded  as  that  in  Kightley  v. 
Kightley.  If  the  above  observations  be  considered  well  founded,  it 
follows  that  Lord  Alvanley's  decree  cannot  be  supported. 

(i)  SVes.  jun.  328.  (£)  3  Ves.  551.  (/)  1  Meriv.  233. 


456  Of  charging  Legacies  [Cn.  XII. 

The  case  of  Keeling  v.  Brown,(m)  stated  in  chap. XIV.  sect.  1,  is 
an  instance  in  which  the  words  of  the  will,  and  the  introductory 
clause,  "  Imprimis,  I  will  and  direct  that  all  my  just  debts  and 
funeral  expenses  be  paid  and  discharged  as  soon  as  conveniently 
may  be  after  my  decease  by  my  executors,  &c."  have  been  con- 
sidered as  not  furnishing  sufficient  evidence  of  intention  to  charge 
the  real  estate. 

It  may  happen,  from  the  manner  in  which  a  will  is  framed,  that 
some  of  the  legacies  given  by  it  shall  be  charges  upon  the  real 
estate  in  execlusion  of  the  others.  An  instance  of  this  kind  occurred 
in  the  case  of  Hone  v.  Medcraft,(n]  which  was  to  the  following  effect : 

The  testator  devised  to  his  heir  a  part  of  his  real  estates,  subject 
to  and  chargeable  with  debts,  &c.  "  and  all  legacies  thereafter  men- 
tioned, that  is  to  say,"  &c.  giving  several  general  legacies  ;  all 
of  which  he  directed  to  be  paid  by  his  said  heir ;  but  if  no  heir 
could  be  found,  he  devised  those  estates  to  a  Mr.  Lowndes,  subject 
to  and  chargeable  with  "  all  the  legacies  before  mentioned."  The 
testator  next  disposed  of  the  remainder  of  his  real  property  to  cha- 
ritable uses,  and  bequeathed  some  other  legacies.  Lord  Thurlow 
determined,  that  the  last  class  of  legacies  was  not  charged  upon  the 
real  estates.  But — 

3.  Questions  of  charge  of  debts,  or  legacies  upon  the  real  estate 
can  only  arise  where  the  will,  containing  such  a  charge,  is  executed 
and  attested  as  required  by  the  Statute  of  Frauds(o)  to  affect  real 
property.  Yet,  when  the  will  is  duly  executed  charging  the  real 
estate,  subtle  distinctions  have  been  made  as  to  the  power  of  a  tes- 
tator to  alter,  or  bequeath  to  other  persons,  legacies  so  given  and 
charged,  by  a  codicil  not  executed  according  to  the  statute. 

It  seems,  however,  settled,  that  if  a  testator  create  a  general  charge 
of  legacies  upon  his  lands,  in  aid  of  the  personal  estate,  by  a  will 
properly  executed  and  attested,  and  he  afterwards  by  a  codicil,  not 
duly  excuted  and  attested  to  affect  real  estates,  bequeath  additional 
legacies;  if  the  personal  assets  be  insufficient  to  pay  the  whole,  then 
the  legacies  by  the  codicil  will  be  charges  upon  the  real  estate, 
equally  with  those  given  by  the  wUl.(/>)  The  principle  appears  to  be 
founded  in  analogy  to  debts  ;  which,  if  charged  generally  upon  lands, 
will  include  as  well  the  debts  incurred  after,  as  those  contracted 
prior  to  the  date  of  the  will.  Lord  Hardwicke.is  accordingly  re- 
ported to  have  expressed  the  rule  to  the  following  effect :  "  When 
a  real  estate  is  duly  devised  to  trustees,  and  is  well  charged,  by  a 
will  duly  executed,  with  debts  and  legacies ;  debts  which  are  con- 
tracted after  the  will,  or  legacies  given  by  a  codicil,  though  not 
duly  executed,  will  be  a  charge  upon  the  real  estate  ;  for  the  real 
estate  was  well  charged  by  the  will  with  the  debts  and  legacies  ;  and 
it  is  immaterial  by  what  instrument  they  appear,  provided  it  has 
been  proved  as  part  of  the  will ;  and  when  that  is  done,  it  is  suffi- 
cient to  denote  the  trust,  and  that  it  is  part  of  what  was  intended  to 
be  comprised. (q)  In  consistency  with  this  declaration,  it  seems  that 
his  Lordship  determined  the  following  case  : 

(nz)  5  Vcs  359.     (n)  1  Bro.  C.  C.  261  and  see  Masters  v.  Masters,  1  P.  Will.  421. 
(o)  29  Char.  II.  cap.  3.     (ft)  1  P.  Will.  423.  Ambl.  33.  41.  3  Ves.  163.  164. 
(y)  See  the  reasons  assigned  by  Sir  Wm.  Grant,  12.  Ves.  37.  and  by  Lord 
Rosslyn,  2  Ves.  jun.  237. 


SECT.  II.]  upon  the  Real  Estate.  457 

The  testatrix  devised  her  residuary  real  and  personal  estates  to 
her  two  sisters,  "  after  payment  of  debts  and  legacies  ;"  and  by  a 
codicil,  without  any  attestation,  she  gave  a  legacy  to  her  cousin. 
Lord  Hardwicke  decided  that  this  legacy  was  a  charge  upon  the  real 
property.(r) 

Since  additional  legacies  may  be  given  by  an  unattested  codicil, 
so  as  to  increase  the  charge  upon  the  real  estate,  when  that  pro- 
perty is  provided  as  an  auxiliary  fund  for  the  discharge  of  debts  and 
legacies  generally ;  consistency  of  principle  requires  that  a  testator 
may,  by  an  unattested  codicil,  dispose  of  a  part  or  the  whole  of  his 
personal  estate,  exempt  from  debts  and  legacies  ;  although  such  a 
power,  like  the  former,  enables  him  by  circuity  to  make  the  real 
estates  the  primary  fund  to  answer  those  obligations.  Such  was  the 
opinion  of  Lord  Mvanley  in  the  following  case  : 

In  Coxe  v.  Basset,(s]  the  testator  charged  his  real  estates  with 
the  payment  of  debts  and  legacies  ;  and  by  an  unattested  codicil 
he  gave  to  his  -wife  all  his  personal  estate,  with  the  exception  of 
particular  articles,  which  were  to  go  as  heir-looms,  &c.  It  was  ob- 
jected to  this  disposition,  that  where  a  testator  has  subjected  his 
real  estate  in  aid  of  his  personal,  as .  in  the  present  instance,  he 
could  not  by  a  subsequent  unattested  codicil  give  away  any  part  of 
the  latter  fund,  so  as  to  increase  the  load  upon  the  real  property ; 
or  rather,  that  he  could  not  by  such  an  instrument  so  dispose  of  his 
personal  estate  as  to  exempt  it  from  the  discharge  of  his  debts  and 
legacies.  To  this  objection  Lord  Mvanley  answered,  the  testator 
might  undoubtedly  increase  the  charge  with  regard  to  legacies ;  a 
question  of  right  long  doubted,  but  then  settled ;  and  if  he  might 
increase  it  by  legacies  given  by  an  unattested  codicil,  it  was  a  ner 
cessary  consequence  that  he  might  dispose  of  part  of  his  personal 
estate  as  a  specific  legacy,  and  therefore  exempt  it  (as  in  this  case) 
from  his  debts  and  legacies,  by  a  codicil  not  regularly  attested ; 
and  so  his  Lordship  determined. 

It  follows,  from  the  power  of  a  testator  to  give  legacies  by  an 
unattested  codicil,  to  affect  real  estate  under  a  general  charge  of 
legacies  by  a  duly  executed  will,  that  he  may,  by  the  like  imperfect 
instrument,  alter  or  revoke  all  or  any  of  the  legacies  contained  in 
the  will,  or  substitute  others. 

Thus  in  Brudenell  v.  Boughton,(t)  the  testator,  having  a  small 
personal  and  real  estate,  gave  by  his  first  will,  which  was  duly  ex- 
ecuted, SOOJ.  to  his  sister  Brudenell,  and  to  his  sister  Layng  4001, 
The  residue  of  both  funds,  not  before  disposed  of,  he  gave,  "  after 
payment  of  debts  and  legacies,"  to  the  defendant.  By  the  second 
will  he  revoked  all  former  wills,  and  bequeathed  to  his  sister  Layng 
only  100Z.,  and  to  his  sister  Brudenell  only  400Z.  The  residue  of 
his  estates  he  gave  as  in  the  first  will.  Lord  Hardwicke  determin- 
ed, that  the  first  will  was  pro  tanto  revoked  as  to  those  two  lega- 
cies ;  and  that  the  smaller  sums  in  the  second  were  charges  upon 
the  lands.  His  Lordship  thus  expressed  himself:  "  Suppose  a  man 
to  make  two  wills,  the  first  charging  the  real  estate  with  legacies ; 
and  that  by  the  second  there  are  general  pecuniary  legacies,  but 

(r)  Hannis  v.  Packer,  Ambl.  556.  and  see  8  Ves.  498. 

3  Ves.  159.  164.  and  see  Buckeridge  v.  Ingram,  2  Ves.  jun.  652.  665. 
2  Atk.  268. 


458  Of  charging  Legacies  [Cn.  XII. 

it  is  not  executed  in  form  ;  yet  I  have  no  doubt  of  the  latter  lega- 
cies being  a  charge  upon  the  real  estate. (u)  But  there  is  no  occa- 
sion to  go  so  far  in  the  present  case,  because  the  legacies  in  the 
second  will  may  be  considered  as  part  of  the  money  given  by  the 
first,  only  new  modelled  or  qualified.  These  are  less  sums  ;  100?. 
instead  of  4001. ,  and  400Z.  instead  of  8001.  If  given  exactly  in  the 
same  manner,  and  to  the  same  persons,  there  could  have  been  no 
doubt ;  but  there  being  less  sums,  would  have  been  a  revocation 
pro  tanto,  and  undoubtedly  a  charge  upon  the  land  ;  but  being 
given  differently,  and  to  different  persons,  makes  the  nicety.  How- 
ever, I  am  of  opinion,  this  is  no  more  than  a  lessening  .of  the  quan- 
tum of  the  money  given  by  the  former  will,  and  only  differently 
modified ;  and  I  must  decree  the  less  sums  to  be  raised  out  of  the 
real  estate." 

Upon  the  principle  of  the  last  authority,  Lord  Mvanley  deter- 
mined the  case  of  Attorney  General  v.  Ward,(x)  in  which  Sarah 
Kipling  devised  her  real  and  personal  estates  to  a  trustee  to  sell ; 
and,  after  directing  the  joint  proceeds  to  be  applied  in  discharging 
the  costs  of  the  sale,  her  debts,  funeral,  and  testamentary  expenses, 
she  gave  legacies,  among  which  was  one  to  the  children  of  a  Mr. 
Daniel,  if  there  should  be  a  sufficiency  to  discharge  it,  after  pay- 
ment of  debts,  funeral,  and  testamentary  expenses  and  legacies  ; 
and  in  case  of  a  residue,  she  gave  it  to  charity.  The  testatrix  after- 
wards made  a  codicil  (which  was  not  properly  attested  to  charge 
freehold  estate,)  and  bequeathed  to  her  brother's  son,  C.  Kipling, 
the  3001.  designed  for  the  children  of  Mr.  Daniel.  The  question 
was,  whether,  as  that  legacy  was  a  charge  upon  the  real  property 
by  the  will,  it  was  effectually  revoked  and  given  by  the  irregular 
codicil  to  the  son  of  Mr.  Kipling  ?  And  Lord  Mvanley  decided  in 
the  affirmative;  declaring,  that  the  legacy  of  3001.  given  by  the 
will  to  the  children  of  Mr.  Daniel  was  revoked(2/)  by  the  codicil, 
and  was  well  given  by  the  codicil  to  Mr.  Kipling. 

In  delivering  the  judgment  in  the  last  case,  his  Lordship  ob- 
served :  "  If  this  were  a  legacy  charged  only  upon  the  land,  nothing 
can  be  clearer  than  that  it  could  hot  be  altered,  either  as  to  the 
quantam  or  the  person,  by  any  will  but  such  as  would  have  affect- 
ed land  ;  but,  being  upon  a  mixed  fund  and  once  well  charged,  the 
testatrix  may  afterwards  modify  or  alter  it,  as  she  thinks  fit.  If  a 
testator  say,  he  charges  all  the  legacies  given  by  his  will  upon  his 
real  estate,  and  give  20Z.  to  A.,  he  may,  by  an  unattested  codicil, 
give  that  legacy  to  B.  It  has  been  determined,  that  you  cannot 
create  new  legacies,  but  you  may  modify  or  alter  any  before  given. 
You  cannot  give  fresh  legacies  upon  land,  unless  future  legacies 
be  charged,  but  you  may  substitute  one  for  another." 

Hence,  if  the  charge  of  legacies  upon  the  real  estate,  in  aid  of  the 
personal,  be  not  general,  but  of  legacies  partially ;  as  if  it  were  of 
legacies  "  hereby  given,"  or  ",of  the  several  other  legacies  hereinaf- 
ter bequeathed  :"  in  neither  case  will  legacies  by  an  unattested  co- 
dicil be  charges  upon  the  real  estate  ;  because,  in  each  instance,  the 
charges  are  confined  to  bequests  in  the  will,  and  are  not,  as  in  the 
preceding  case  of  Hannis  v.  Packer,  charges  of  legacies  generally. 

(«)  Seethe  last  case.  (a:)  3  Ves.  327.        (t/)  8  Ves.  499.    2  Atk.  273. 


SECT.  II.]  upon  the  Real  Estate,  459 

Thus  in  Banner  v.  Bonner,(z]  the  testator,  after  giving  several  le- 
gacies or  portions  to  his  children,  devised  his  real  estates  (subject  to 
a  term  of  1000  years)  to  his  second  son  for  life,  with  remainders  over. 
The  trustees  of  the  term  were  directed  to  raise  out  of  the  rents  and 
profits  of  the  lands  comprised  in  it,  or  by  mortgage  or  sale,  and  pay 
to  his  children  "the  several  legacies  hereby  given  to  them  with  in- 
terest, and  also  the  several  other  legacies  hereinafter  bequeathed." 
He  then  gave  a  few  small  legacies ;  and  afterwards,  by  an  unattest- 
ed  codicil,  he  bequeathed  additional  legacies  to  some  of  his  children, 
which  were  declared  by  Lord  Eldon  not  to  be  charges  upon  the  real 
estate,  since  the  charge  of  legacies  by  the  will  was  not  general. 

In  the  preceding  cases,  it  is  observable,  that  the  real  estate  was 
the  auxiliary,  not  the  primary  fund,  for  payment  of  the  legacies  ; 
consequently,  the  unattested  codicils  were  allowed  to  operate,  either 
in  giving  additional  legacies  where  the  charges  of  the  lands  by  the 
wills  were  of  the  legacies  generally,  or  in  altering  or  revoking  those 
which  affected  the  real  property,  under  partial  charges  in  the  wills. 
But  where  the  real  property  is  the  only  fund  for  the  legacies,  those 
charges  can  neither  be  altered  nor  revoked  by  a  codicil  not  executed 
and  attested,  as  required  by  the  Statute  of  Frauds.  Such  was  the 
opinion  of  Lord  Mvanley  in  the  case  of  the  Attorney  General  v." 
Ward  before  stated,  and  of  Lord  Hardwicke  in  Brudenell  v.  Bough- 
ton,  who  said,  "  It  is  very  certain  no  devise  of  lands  can  be  made, 
but  with  such  solemnity  accompanying  the  execution  of  it,  as  direct- 
ed by  that  statute ;  and  it  is  equally  clear,  where  a  sum  of  money  is 
given  originally  and  primarily  out  of  land,  a  will,  with  that  charge, 
must  be  equally  executed  with  the  same  solemnity,  because  it  is 
considered  part  of  the  land  :  a  construction  analogous  to  the  rule  of 
law,  that  a  devise  of  rents  and  profits  is  a  devise  of  the  land  itself. 
The  rule  is  the  same  as  to  revocations  of  a  devise  of  lands ;  and  with 
respect  to  a  revocation  of  a  sum  of  money  charged  by  a  will  upon 
lands,  they  must  be  revoked  in  the  same  manner."(a)  If  then  lega- 
cies charged  by  will  upon  real  estates,  as  the  primary  fund,  cannot 
be  affected  by  an  unattested  codicil,  much  less  can  such  an  instru- 
ment create  additional  legacies  to  be  paid  out  of  that  estate  in  the 
first  instance. 

In  illustration  of  the  above  remarks,  the  following  cases  are  pro- 
duced : 

In  Sheddon  v.  Goodrich,(b)  Mr.  Goodrich,  having  one  son  and 
three  daughters,  gave,  by  will  duly  executed,  his  lands,  &c.  in  the 
islands  of  Bermuda,  to  his  wife  for  life;  and  after  bequeathing  to 
her  and  his  children  general  legacies,  he  directed  his  executors  to 
sell,  after  his  wife's  death,  his  real  and  personal  estates,  and  to  pay, 
with  all  convenient  dispatch  after  the  sale,  60001.  to  each  daughter, 
&c.  and  appointed  his  son  residuary  legatee.  The  testator,  upon 
the  birth  of  a  daughter,  made  a  second  will,  which  was  attested  by 
two  witnesses  only  ;  and,  after  revoking  all  former  wills,  he  disposed 
of  his  real  estates  in  Bermuda ;  bequeathed  to  his  wife  a  legacy, 
and  gave  his  residuary  estates  to  his  son  and  four  daughters.  To 
this  second  will  the  testator  added  a  codicil,  attested  by  the  same 

(z)  13  Ves.  379.          (a)  2  Atk.  272.  and  see  18  Ves.  167.         (6)  8  Ves.  481. 


460  Of  charging  Legacies  [Cn.  XII. 

two  witnesses  only ;  by  which  he  varied  the  dispositions  of  the  se- 
cond will.  As  to  the  effect  of  the  two  latter  instruments  upon  the 
former,  Lord  Eldon  declared,  that,  as  the  English  real  estates  were 
not,  by  the  first  duly-executed  will,  absolutely  converted  into  per- 
sonal estate,  neither  of  the  latter  instruments  could  either  revoke  or 
alter  the  dispositions  contained  in  it,  but  that  since  the  lands  in  Ber- 
muda would  pass  by  a  will,  without  the  attestation  of  three  witnesses, 
they  were  well  disposed  of  by  the  second  will  and  codicil. 

The  principle  of  Lord  Eldon's  .decree  appears  to  be,  that  the  case 
was  an  attempt  to  dispose  of  the  produce  from  a  sale  of  freehold 
property  by  a  will  and  codicil  not  attested  as  required  by  the  Statute 
of  Frauds.  But  his  Lordship  inclined  to  an  opinion,  that,  if  by  the 
duly  executed  will,  the  lands  had  been  absolutely  and  for  ever  con- 
verted into  personalty, (c)  the  second  will  would  have  revoked  the 
first ;  and  the  real  proceeds,  in  its  new  character  of  personal  estate, 
would  have  been  well  disposed  of  Jay  the  latter  will  and  codicil. 
WitK  respect  to  this  point,  Sir  William  Grant,  M.  R.  made  the  fol- 
lowing remarks  :  "  I  have  always  understood,  that  an  unattested  will 
or  codicil  could  have  no  operation  on  the  land,  or  its  produce.  There 
are  indeed  some  expressions  in  the  report  of  Sheddon  v.  Goodrich, 
'which  seem  to  imply  that  a  testator  may  consider  his  real  estate  as 
by  his  will  thrown  into  personalty,  so  that  he  could  act  upon  it  as  if 
it  were  personal  property ;  but  I  cannot  conceive  any  such  case,  that 
a  person  can  enable  himself  to  dispose  of  his  real  estate  or  its  pro- 
duce, by  any  other  sort  of  will  than  the  law  requires  to  pass  land."(d) 

In  Hooper  v.  Goodwin,(e)  the  testator,  by  a  will  duly  executed, 
devised  his  real  estates  to  trustees  to  sell,  and  invest  the  money  in 
stock,  for  the  purpose  of  answering  the  legacies  and  annuities  given 
by  his  ivill.  He  then  bequeathed  several  legacies  and  annuities  ; 
and  gave  his  residuary  estate  to  four  persons  as  tenants  in  common. 
The  testator  afterwards  made  a  codicil,  attested  only  by  two  wit- 
nesses, and  attempted,  to  dispose  of  the  share  of  a  residuary  legatee 
who  happened  to  die  before  him.  Sir  William  Grant  determined, 
that  so  much  of  the  deceased's  share,  as  consisted  of  the  proceeds 
from  a  sale  of  the  real  estate,  did  not  pass  by  the  codicil ;  the  con- 
version of  that  fund  not  being  absolute,  but  for  particular  purposes ; 
and  therefore  that  the  lapsed  interest,  being  part  of  the  produce  of 
the  realty,  belonged  to  the  heir  of  the  testator. 

It  will  make  no  difference,  although  the  testator  expressly  reserve 
to  himself,  by  his  duly-executed  will,  a  power  to  dispose  of  his  real 
estate  or  its  produce  by  an  unattested  codicil,  and  for  the  reasons 
detailed  by  Lord  Eldon,  viz.  "  I  take  it  to  be  decided  (said  his  Lord- 
ship, referring  to  a  future  unattested  paper,)  and  there  is  no  doubt 
that  a  paper,  made  subsequent  to  the  will  could  never  be  part  of  it, 
for  the  three  witnesses  required  by  the  statute,  are  witnesses  to  the 
sanity  of  the  testator,  and  to  all  that  is  necessary  to  constitute  a 
good  will.  The  consequence  is,  that  the  subsequent  paper  has  not 
the  ceremonies  necessary  to  constitute  a  devise  of  land.  The  cases 
upon  a  charge  of  legacies  by  a  will  with  three  witnesses  apply  to 
this  ;  and,  although  it  be  settled  that  legacies  given  by  an  unattested 

(c)  See  Chap.  IX.  which  treats  of  this  subject. 

(d)  18  Ves.  166.  (e)  Ibid.  156.     1  Jacob.  575. 


SECT.  H.  J  upon  the  Real  Estate.  461 

paper  will  be  included  in  that  charge ;  that  has  been  met  at  least 
with  this  symptom  of  disapprobation,  that  it  is  remarked  as  a  solitary 
case,(y)  and  if,  by  a  will  duly  attested,  the  devisor  direct  an  estate 
to  be  sold,  though  he  could  have  exhausted  that  fund  by  legacies, 
he  could  not  by  a  will  unattested  give  away  part  of  it."(g") 

Consistently  with  these  observations,  Sir  William  Grant,  M.  R. 
decided  the  case  of  Rose  v.  Cunynghame,(h)  in  which  Mr.  Uncly, 
by  will  duly -executed,  devised  h*is  plantations  and  estates  in  the 
island  of  Grenada  to  trustees,  with  directions  out  of  the  produce  to 
discharge  incumbrances  affecting  the  property,  and  "  to  pay  all  such 
annuities,  legacies,  or  bequests,  as  he  should  give  or  bequeath,  to 
be  paid  out  and  from,  or  charge  and  make  chargeable  upon,  his  real 
or  personal  estate  in  Grenada  by  his  will,  or  by  any  writing  or 
writings,  at  any  time  or  times  thereafter,  signed  by  him,  or  in  his 
own  hand  writing,  whether  witnessed  or  not;"  and,  after  payment  of 
the  said  debts,  &c.  as  aforesaid,  the  residuary  annual  produce,  as 
also  the  produce  of  his  personal  estate  in  that  island,  were  to 
accumulate  until  the  year  1810,  when  his  nephews  were  to  have  the 
estates,  and  the  accumulation  was  to  form  part  of  the  residue  of  the 
testator's  personal  estate.  And,  after  charging  his  plantations  and 
estates  with  two  annuities,  one  being  of  200/.  to  his  wife,  he  devised 
to  the  same  trustees  his  real  estates  in  England,  and  all  other  his 
real  and  personal  estates,  (with  the  exception  of  such  parts  "  as  by 
that  his  will,  or  by  any  codicil  or  codicils  thereto,  or  other  writing 
to  be  signed  by  him,  or  wrote  with  his  own  hand,  whether  witnessed 
or  not,  he  had  disposed  or  should  dispose  of,")  in  trust  to  sell,  and 
pay  his  funeral  expenses,  the  costs  of  proving  the  will,  his  debts, 
(except  those  before  provided  for  out  of  the  Grenada  estates,)  and 
such  legacies  as  he  had  given  by  his  will,  or  which  he  should  give 
by  any  codicil  thereto,  or  by  any  writing  signed  by  him,  or  in  his 
own  hand-writing,  whether  witnessed  or  not."  The  testator  then 
gave  several  legacies,  and  disposed  of  the  residue  of  his  real  and 
personal  estates.  By  an  unattested  codicil  he  gave  to  his  wife  an 
additional  annuity  of  100Z.  from  his  Grenada  estate;  and  the  ques- 
tion was,  whether  that  estate  was  well  charged  with  it  ?  And  Sir 
W.  Grant  determined  in  the  negative. 

The  principle  of  the  decree  appears  to  have  been,  that  the  Gre- 
nada estate  not  being  charged  with  .the  payment  of  legacies  and 
annuities  generally,  in  aid  of  the  personal  estate ;  but  with  those 
only  bequeathed  by  the  will,  and  such  (as  expressed  and  intended) 
as  should  be  given  in  future  by  a  codicil  or  writing,  whether  attested 
or  not,  and  as  the  primary  fund  for  their  payment;  the  power  so 
reserved  to  dispose  of  the  proceeds  of  real  estate  by  an  unattested 
instrument  could  not  be  supported,  since  the  .Statute  of  Frauds : 
consequently,  the  unattested  codicil  in  the  present  instance  was  in- 
sufficient, either  of  itself,  or  by  aid  of  the  will,  to  charge  the  addi- 
tional annuity  upon  the  Grenada  estate.  This  case  therefore  is  the 
same  in  principle  with  that  of  Sheddon  v.  Goodrich  before  stated. (i) 

It  may  happen  that  an  unattested  paper  writing  may  be  referred 
to  in  a  duly  executed  will,  as  then  in  existence,  for  the  disposition 
of  the  real  estate  or  of  the  whole  or  part  of  its  produce.  The  effect 

(/)  18  Ves.  167.     .(.§•)  1  Ves&  Bea.  445.      (A)  12  Ves.  29.      (i)  Ante,  p.  459. 
VOL.  I.  3  N 


462  Of  charging  Legacies  [CH.  XII. 

of  such  an  instrument  in  consequence  of  that  reference,  is  neces- 
sary to  be  considered. 

Jt  was  said  by  Wilson  J.  in  Habergham  v.  Vincent,(k]  "  he  be- 
lieved it  to  be  true,  and  Ijad  found  no  case  to  the  contrary,  that  if  a 
testator  in  his  will  refer  expressly  to  any  paper  already  written,  and 
he  so  describe  it,  that  there  can  be  no  doubt  of  the  identity,  and  the 
will  is  executed  in  the  presence  of  three  witnesses;  that  paper 
makes  part  of  the  will,  whether  executed  or  not;  and  such  reference 
is  the  same  as  if  he  had  incorporated  it."  This  was  assented  to  by 
Buller,^.  in  the  same  case,.(/)  Lord  Eldon's  language  .upon  this 
subject  is  as  follows :  "  That  an  instrument  properly  attested  in 
order  to  incorporate  another  not  attested,  must  so  describe  it,  as  to 
be  a  manifestation  of  what  the  paper  is,  which  is  meant  to  be  incor- 
porated, in  such  a  way,  that  a  court  of  equity  can  be  under  no  mis- 
take."(m)  It  might  have  been  concluded  from,  these  declarations, 
that  this  point  was  settled ;  but  we  find  Lord  Eldon  stating,  on  a 
recent  occasion,  "  that  the  cases  so  far  as  they  had  gone,  raised 
doubts,  even  as  to  ti  paper  antecedently  existing,  but  clearly  and 
undeniably  referred  to  in  the  will."(n)  This  point,  though  not  as 
yet  the  subject  of  express  decision,  cannot  be  considered  as  unpre- 
judiced by  opinion.  In  the  following  case  Lord  Eldon  determined, 
that  the  paper  writings,  referred  to  by  the  will,  were  not  suffi- 
ciently described  and  identified,  as  to  be  incorporated  in  it,  so  as 
to  dispose  of  the  rents,  and  the  produce  from  the  sale  of  real 
estates. 

The  case  alluded  to  is  Smart  v.  Prujean,(o]  in  which  Mr.  Lowe, 
a  catholic  priest  of  Gravelines  in  Flanders,  being  seised  in  fee  of 
real  estates  in  England,  gave  them,  by  will  duly  executed,  to  trus- 
tees, in  trust  to  sell,  and  apply  the  intermediate  rents  "  for  such 
persons  and  purposes  as  he  (the  testator)  should  by  a  private  letter 
or  paper  of  instructions,  which  he  mentioned  in  his  will,  he  intended 
to  leave  with  a  Mrs.  Johnson,  then  residing  at  Gravelines,  or  with 
her  successor  for  the  time  being,  should  appoint."  And  he  directed 
his  trustees,  immediately  after  the  sale,  to  pay  the  proceeds  with 
interest  till  payment,  "  to  and  for  the  benefit  of  such  person,  and 
in  such  manner  as  he,  by  the  like  private  letter  or  paper  of  instruc- 
tions, should  appoint."  He  then  gave  legacies  to  his  trustees;  and 
his  residuary  real  and  personal  estates  to  the  same  trustees,  "  for 
the  use  of  such  person  as  should  be  named  in  the  same  letter  or 
paper  of  instructions,"  and  he  appointed  the  trustees  executors. 
The  testator  died  at  Gravelines ;  and  two  papers  were  found  in  the 
same  envelope  with  the  will,  in  his  bureau,  in  the  room  where  he 
resided,  belonging  and  adjoining  to  the  monastery  of  English  nuns 
at  Gravelines,  of  which  Mrs.  Johnson  (referred  to  in  the  will)  was 
the  superior*  The  envelope  was  sealed  and  endorsed  by  the  tes- 
tator thus :  "  The  will  of  Anthony  Lowe."  The  paper  writings 
were  written  by  the  testator;  one  of  which,  addressed  to  his  trus- 
tees, directed  them  to  pay  the  rents  of  his  houses  till  sold,  or  if 
sold,  the  net  proceeds  to  Mrs.  Johnson,  or  her  then  successor,  or 

(*)  2  Ves.  jun.  228.     (/)  Ibid.  p.  232.     (m)  6  Ves.  565.     (n)  1  Ves.5c  Bea.  445. 
(o)  6  Ves.  560.  and  see  the  case  of  Wilkinson  v.  Adam,  1  Ves.  &  Bea.  426.  445. 
461. 


SECT.  III.]  upon  the  Real  Estate.  463 

to  such  other  person  as  they  or  either  of  them  should  appoint.  The 
other  paper  writing  was  addressed  to  Mrs.  Johnson,  directing  her 
how  to  apply  the  proceeds  from  the  sale  of  his  real  estate  and  his 
personal  property,  which  was  in  discharging  a  debt  and  legacies, 
giving  the  residue  to  herself.  The  question  was,  whether  those 
paper  writings  were  so  referred  to  by  the  will,  as  that  they  could 
be  clearly  identified  as  the  very  letter  or  paper  of  instructions  men- 
tioned in  such  will,  so  as  to  be  embodied  in,  and  made  parts  of  it? 
And  Lord  Eldon  determined  in  the  negative ;  observing  upon  this 
part  of  the  case,  as  follows  :  "  The  true  question  is,  if  these  papers 
were  fouad  in  the  bureau  with  the  will,  ban  I  say  from  the  contents 
of  the  will,  that  these  two  papers  are  those  referred  to.  Suppose 
several  other  papers  were  found  with  them,  could  I  say  this  will 
would  have  enabled  me  to  select  these  two  as  the  only  papers  re- 
ferred to.  The  rule,  and  rny  opinion  are,  that  the  will  has  not  by 
its  contents  sufficiently  identified  those  papers  to  enable  me  to  say, 
that  they  are  necessarily  incorporated;  if  not,  they  are  not  attested 
by  three  witnesses,  and  it  is  admitted  that  this  sort  of  disposition, 
unless  the  antecedent  paper  is  incorporated,  cannot  be  brought 
within  the  rule  as  to  debts  and  legacies  charged  on  real  estate  by 
an  unattested  paper."  The  consequence  was,  that,  for  this  defect, 
his  Lordship  declared  that  the  persons  claiming  under  those  paper- 
writings  were  not  entitled. 

SECT.  III.  Of  Exoneration. 

Where  there  is  no  doubt  as  to  debts  and  legacies  being  effectu- 
ally charged  upon  the  real  estate,  it  is  necessary  to  ascertain  when 
the  personal  is  to  be  first  applied,  and  the  real  estate  is  an  auxiliary 
fund  only  ;  and  when  the  real  estate  is  the  primary,  and  the  per- 
sonal estate  the  secondary  fund.  In  prosecuting  this  enquiry,  it  is 
proposed  to  consider, — 

1.  When  the  personal  estate  is  first  applicable  to  the  satisfaction 
of  debts  and  legacies. 

The  rule  is  general,  that  in  the  absence  of  contrary  intention  the 
personal  estate  is  the  first  and  natural  fund  for  the  payment  of  debts 
and  legacies ;  arid  the  real  estate  is  only  to  be  resorted  to  in  aid  of 
the  former.  A  court  of  equity  has,  in  several  of  the  cases  after  men- 
tioned, attached  considerable  importance  to  the  circumstance  of 
the  devisee  of  the  land  being  also  legatee  of  the  personal  estate, 
considering  it  to  be  a  strong  mark  of  intention  that  the  testator 
could  not  mean  to  exempt  the  personal  fund  to  the  prejudice  of  the 
real,  when  both  of  them  were  given  to  the  same  individual.  And 
it  seems  to  be  now  settled,  that  whether  the  real  estate  be  devised 
to  a  person,  upon  condition  of  his  paying  debts  and  legacies,  or  be 
charged  with  them  generally,  or  whether  it  be  given  to  trustees  for 
those  purposes,  and  the  personal  estate  is  disposed  of  by  a  general 
residuary  bequjest,(p)  none  of  these  circumstances  will  prevent  the 
personal  fund  being  applied,  in  the  first  instance,  to  the  satisfac- 
tion of  those  demands.  The  following  cases  will  establish  those 
remarks : 

(/z)  Philijisv.  Philips,  2  Bo.  C.  C.  274.  see.m/ra  sub-div.  2.  Fitzgerald  v.  Field, 
1  Russ.  428. 


464  Exoneration  [Cn.  XII 

In  Dolman  v.  Smith,(q)  Sir  T.  Dolman,  after  bequeathing  lega- 
cies, devised  his  real  estates  to  trustees  for  the  payment  of  debts, 
legacies  and  funeral  expenses,  with  which  he  charged  those  estates. 
He  then  directed  his  trustees  to  receive  the  rents  and  profits,  until 
his  nephew  Thomas,  attained  twenty-five,  and  to  allow  him  out  of 
them  30Z.  annually  ;  also  201.  a  year  to  Lewis  and  Dorothy,  till  they 
attained  the  same  ages  ;  and  the  residue  of  the  rents,  with  the 
estates,  he  limited  to  Thomas  in  tail  male,  remainder  over,  direct- 
ing several  articles  of  personalty  to  go  as  heir-looms  with  the 
estates.  He  then  gave  the  residue  of  his  goods,  chattels,  and  per- 
sonal estate,  before  unbequeathed,.  to  his  nephew  Thomajs,  the  de- 
visee of  the  lands,  and  appointed  his  trustees  executors.  The  Court 
decreed,  that  the  personal  estate  was  primarily  liable  to  the  debts 
and  legacies. 

The  above  decision  will  agree  with  modern  authorities,  if  it  be 
referred  not  to  an  absence  of  what  was  then,  and  in  that  case  con- 
sidered requisite,  viz.  an  express  clause  exempting  the  personal 
estate,  but  to  the  general  rule  before  stated,  and  to  the  inference  in 
support  of  it,  arising  from  the  improbability  of  the  testator  intending 
to  exempt  the  personal  estate  from  debts  and  legacies,  in  order  that 
the  nephew  might,  at  any  time  before  the  age  of  twenty- five,  have 
the  opportunity  to  receive  and  spend  it,  in  opposition  to  the  cau- 
tious and  frugal  manner  in  which  the  rents  and  the  real  estate  were 
devised  in  trust  for  his  benefit.  Besides,  as  the  Court  observed, 
since  both  funds  were  to  come  into  the  same  hands,  the  testator 
could  not  with  reason  be  presumed  to  entertain  so  very  frugal  an 
intention,  as  to  one  fund,  and  not  to  extend  the  same  frugal  inten- 
tion to  the  other. 

Sq  in  Harewood  v.  Child,(r)  the  testator  devised  his  real  estates 
to  trustees,  in  trust  to  raise,  as  in  the  will  mentioned,  sufficient 
money  to  pay  his  debts ;  and  after  such  payments,  and  reimbursing 
themselves,  the  trustees  were  to  hold  the  remainder  of  the  premises 
to  the  uses  previously  limited  of  the  manor  of  C.t  which  were  to  the 
use  of  his  daughter  in  tail,  with  remainder  to  his  nephew  Then  he 
gave  all  his  personal  property  to  his  daughter,  whom  he  appointed 
executrix.  It  was  determined,  that  the  personal  estate  was  first  ap- 
plicable to  pay  the  debts,  in  exoneration  of  the  real,  notwithstanding 
the  express  devise  of  the  latter  for  the  purpose. 

Nearly  similar  in  every  respect  to  the  last  case  is  that  of  Hasle- 
wood  v.  Pope.(s)  The  trust  of  the  real  estate  was  the  same,  with 
the  exception  of  the  clause  directing  the  trustees  to  reimburse 
themselves ;  and  the  beneficial  devisee  of  the  estates  was  the  tes- 
tator's daughter  in  tail,  who  wasv  a  minor,  and  to  whom  he  also  gave 
"  all  his  personal  estate,"  appointing  her  sole  executrix.  Lord 
Talbot  declared  the  personal  fund  to  be  first  applied  to  answer  the 
debts,  observing,  that  his  opinion  was  chiefly  founded  on  the  cir- 
cumstance of  the  legatee  of  the  personal  estate  being  also  devisee 
of  the  surplus  real  estate  in  tail ;  for,  (said  he)  "  I  cannot  think  it 
was.  the  testator's  intention  to  exempt  his  personal  estate  from  his 
debts,  for  no  other  reason  than  that  his  daughter  might  dispose  of 

( 9)  Pre.  Ch.  456.  et  vide  French  v,  Chichester,  3  Bro.  Parl,  Ca.  16.  8vo.  ed. 
(r)  Stated  in  Forrest,  204.  (s)  3  P.  Will.  324.  ed.  by  Cox. 


SECT.  III.]  of  the  Real  Estate.  465 

it  by  will  under  the  age  of  twenty-one,  on  purpose  to  leave  the  real 
estate,  settled  on  herself  in  tail,  the  more  incumbered." 

It  is  worthy  of  observation,  that  in  the  two  last  cases,  the  per- 
sonal estate  was  not  given  by  the  term  residue,  and  yet  that  circum- 
stance was  not  considered  as  showing  any  intention  in  favour  of 
the  legatee,  to  the  prejudice  of  the  devisee  of  the  real  estate,  the 
legatee  of  the  personal  being  also  appointed  sole  executrix  j  a  cha- 
racter in  which  she  naturally  took  the  personal  estate,  with  all  the 
burthens  attached  to  it  in  a  regular  course  of  administration. (t] 

In  Lord  Inchiquin  v.  French,(u)  Lord  Thomond,  after  directing 
his  debts  to  be  paid,  vested  all  his  real  estates  in  trustees,  to  sell  a 
sufficient  part  of  them  to  pay  debts  and  legacies,  and  to  reimburse 
themselves  all  charges  ;  and  after  those  payments,  to  convey  the 
remaining  estates  'to  Lord  O'jBryan,  then  a  minor,  in  tail  male, 
with  remainders  over.  The  testator  then  gave  a  legacy  of  20,OOOJ. 
to  Ji.  and  directed  the  produce  from  the  sale  ordered  of  his  real 
estate,  to  be  accounted  personal,  and  gave  all  the  residue  of  his 
personal  estate,  after  payment  of  debts  and  legacies,  to  Lord 
O'Bryan.  Lord  Hardwicke  determined  that  the  personal  estate 
was  the  primary  fund  for  the  payment  of  the  debts  and  legacies  ; 
and'  he  approved  of  the  case  of  Harwood  v.  Child  before  stated. 

The  grounds  of  his  Lordship's  opinion  were  these  ;  1st,  that  it 
was  neither  expressed,  nor  was  there  a  plain  necessary  implication 
arising  from  the  will,  that  the  testator  meant  to  exempt  his  personal 
estate  from  its  natural  obligation  ;  2dly,  that  by  the  direction  to  the 
trustees  to  pay  debts  and  legacies  out  of  the  real  proceeds  was  to 
be  understood,  that  they  should  raise  so  much  money  out  of  that 
fund  as,  with  the  personal  estate,  would  be  sufficient  to  pay  debts 
and  legacies ;  3dly,  that  the  intention  to  subject  the  personalty  to 
those  demands  was  clear,  from  the  direction  of  the  net  produce  of 
the  lands  sold  to  be  considered  personal  estate,  the  proper  fund  to 
answer  those  payments  ;  and  lastly,  because  it  could  not  be  sup- 
posed the  testator  would  have  ordered  part  of  his  real  property  to 
be  sold  in  order  to  give  Lord  O'Bryan  a  greater  personal  estate, 
who  was,  under  the  same  will,  to  take  the  real,  and  at  that  time  a 
child  of  very  tender  years.  Lord  Hardwicke  concluded  with  an 
observation,  sound  in  principle,  and  which,  if  now  followed,  would 
erect  some  mark  as  a  guide  to  fofm  opinions  upon  subjects  of  this 
kind.  "  The  construction  I  have  made  (said  his  Lordship)  is 
agreeable  to  the  express  words,  and  no  implication  can  be  to 
over-rule  them."(x) 

In  conformity  with  the  preceding  authorities,  Lord  Thurlow 
determined  the  case  of  Samwell  v.  Wake,(y]  in  which  the  testator, 
after  desiring  that  his  debts  and  legacies  should  be  paid,  and  to 
that  end  charged  all  his  estate  with  them,  directed  his  trustees  to  sell 
his  estate,  and  apply  the  money  in  discharging  debts  and  legacies ; 
and,  subject  to  those  payments,  he  devised  the  lands  to  his  natural 
son  for  life,  with  remainders  over ;  then  gave  legacies,  and  the  resi- 

(0  See  Brummel  v.  frot/iero,  infra,  and  1  Eden.  45.    2  Scho.  8c  Lefroy,  543. 
(«)  Ambl.  33.  37. 

tx)  A  proposition  acted  upon  in  the  case  of  Morrow  v.  Bush,  1  Cox,  185. 
(y)  1  Bro,  C.  C.  144. 


466  Exoneration  [Cn.  XII. 

due  to  the  plaintiff.  Lord  Thurlow  declared  the  personal  estate 
was  to  be  first  applied  in  satisfaction  of  the  debts  and  legacies. 

In  regard  to  the  exemption  of  the  latter  fund  from  its  natural 
obligation  to  pay  debts  and  legacies,  his  Lordship  made  the  follow- 
ing remark :  "  It  is  not  sufficient  to  charge  the  real  estate,  but  a 
testator  must  show  that  it  was  his  purpose  the  personal  should  not 
be  applied;"  a  manifestation  of  intent  not  necessary  to  be  in  express 
words,  as  will  afterwards  appear,  but  to  be  collected  from  a  sound 
interpretation  of  the  whole  will ;  and  it  is  to  be  noticed  that,  in  the 
last  case,  the  devisee  of  the  real  estate  and  the  legatee  of  the  per- 
sonal, were  not,  as  in  the  preceding  cases,  the  same  person ;  a  cir- 
cumstance therefore  which  is  not,  of  itself,  sufficient  to  prevent  the 
application  of  the  general  rule. 

The  next  case  before  Lord  Thurlow  was  the  Duke  of  Jlncaster  v. 
Mayer, (z)*  a  case  in  which  his  Lordship  reviewed  preceding  autho- 
rities ;  and  it  has  been  since  referred  to  as  the  standard  by  which 
questions  of  this  kind  are  to  be  determined. 

In  that  case  the  testator,  after  creating  a  term  of  ninety-nine  years 
in  "his  real  estates  in  Lincolnshire,  devised  those  estates,  subject  to 
it,  and  in  default  of  his  own  issue,  to  Montague  Bertie  for  life,  with 
remainders  over.  He  then  declared  that  his  trustees  should  be  pos- 
sessed of  the  term,  to  raise  out  of  the  rents  and  profits,  or  by  mort- 
gage, assignment,  or  demise  of  the  estates,  money  sufficient  to  pay 
his  debts,  funeral  expenses,  and  legacies,  after  which  the  term  was  to 
cease.  Towards  the  conclusion  of  his  will,  the  testator  gave  all  his 
household  goods,  chattels,  effects,  and  personal  estate  whatsoever, 
unto  Montague  Bertie,  if  living  at  his  (the  testator's)  death,  but  if 
not,  he  devised  the  same  to  the  person  who  should  be  entitled  t^the 
freehold  of  his  real  estate  under  the  limitations' in  his  will ;  provided 
that  if  he  (the  testator)  left  issue,  the  limitations  of  his  real  estate, 
and  the  devise  of  the  residue  of  his  personal  estate  should  be  void, 
&c. :  and  he  appointed  his  trustees  executors,  directing  them  to  pay 
his  personal  charges,  and  all  his  debts  and  legacies  when  due,  and 
by  such  methods  as  they  thought  proper,  empowering  them  as  execu- 
tors to  reimburse  themselves  their  expenses  in  proving  the  will,  or 
otherwise  in  the  execution  of  such  will,  out  of  his  personal  estate, 
or  out  of  the  money  to  be  raised  under  the  term  of  years.  One  of 
the  questions  was,  whether  the  personal  estate  was  exonerated  from 
the  debts  ?  And  Lords  Commissioners  Ashurst  and  Hotham  were 
of  that  opinion,  and  so  decreed.  But  their  opinion  not  being  satis- 
factory, the  cause  was  re-heard  by  ~Lotd. Thurlow,  who  reversed  the 
decree  after  great  consideration,  and  declared  that  the  personal  es- 
tate was  first  applicable  to  pay  the  debts. 

His  Lordship  professed  the  ground  .upon  which  he  founded  his 
judgment  to  be,  not  any  particular  criticisms,  but  simply  upon  the 
rule  of  law ;  viz.  the  testator  not  having  declared  by  express  \vords, 
nor  -any  other  declaration  which  would  tend  in  law,  to  preserve  the 
personal  estate  for  any  given  purpose  whatsoever.  .The  creation  of 
the  term  could  not  repel  the  general  rule,  for  that  had  no  greater 
effect  than  subjecting  the  estate  to  the  payment  t>f  debts  j  it  afforded 

(z)  1  Bvo.  C.  C.  454.  and  see  Lord  Eldon's  comments,  1  Mcriv.  227.  and 
M'Cleland  v.  Sha-cu.  2  Scho;  8t  Lefroy,  533.  stated  infra. 


SECT.  III.]  of  the  Real  Estate.  467 

no  stronger  inference  of  an  intent  to  exempt  the  personal  estate, 
than  a  devise  in  trust  to  sell,  &c.  for  the-  discharge  of  debts,  which 
occurred  in  preceding  cases.  Similar  to  those  cases,  the  devisees 
of  the  real  estate  and  the  legatees  of  -the  personal  were  in  this  in- 
stance the  same,  circumstances  which,  as  we  have  seen,  had  great 
importance  attached  to  them.  But  the  present  case  is  much  stronger 
against  the  exemption  of  the  personal  fund  than  the  authorities  be- 
fore stated.  The  trustees  of  the  term  were  appointed  executors, 
and  they,  in  the  latter  character,  were  directed  not  only  to  pay  all 
debts,  legacies,  and  funeral  charges,  by  the  methods  they  thought 
proper  (duties  which  as  trustees  they  had  been  previously  ordered  to 
perform  by  means  of  the  term  of  years,)  but  also  the  expenses  of 
probate,  and  their  own  charges  as  executors ;  the  testator  thus 
blending  the  two  characters  and  estates,  and  giving  an  option -in  the 
executor-trustees  to  pay  all  those  demands  out  of  the  personal  fund. 
Hence,  instead  of  any  inference  of  an  intention  appearing  to  ex- 
empt the  personal  fund,  the  testator  pretty  clearly  expressed  his 
meaning,  that  it  should  be  primarily  liable,  and  then,  according  to 
Lord  Hardwicke,  in  the  case  of  Lord  Inchiquin  v.  French,  before 
stated, (a)  against  expression,  no  implication  could  be  made.  Upon 
the  whole,  Lord  Thurlow's  decree  seems  to  be  quite  in  harmony 
with  the  principles  of  the  preceding  cases. 

The  next  case  differs  from  former. authorities,  in  the  particular 
that  there  was  no  disposition  of ^  the  personal  estate,  except  by  the 
appointment  of  an  executor;  as  to  which  Lord  Rosslyn  said,  "no 
case  had  decided  that  the  mere  nomination  of  an  executor,  though 
under  circumstances  which  would  give  him  beneficially  the  personal 
estate,  should  have  the  same  effect  as  a.  distinct  specific  gift  of  it  to 
an  individual" 

The  case  alluded  to  is  Gray  v.  Minnethorpe,(b]  in  which  Mr. 
Simpkin  devised  part  of  his  real  estate  to  trustees  to  sell,  and  to 
pay,  out  of  the  proceeds,  all  his  debts  and  funeral  expenses,  and  to 
invest  what  remained  on  securities,  and  pay  the  interest  to  his 
brother  for  life,  and  to  divide  the  principal,  after  his  brother's  death, 
among  his  nephews  and  nieces.  The  testator  gave  another  estate 
to  his  brother  in  tail,  and  appointed  him  sole  executor,  and  Lord 
Rosslyn  determined,  that  there  was  nothing  in  the  will  to  exempt 
the  personal  estate  from  the  debts. 

In  M"  Cleland  v.  Shaw,(c)  the  executors  were  trustees  of  the  per- 
sonal residue  for  the  testator's  next  of  kin,  and  although  Lord 
Redesdale  decided  the  case  upon  a  review  of  all  the  circumstances  of 
it,  yet  he  (as  Lord  Rosslyn  in  the  last  case)  relied  upon  there  being 
no  specific,  disposition  of  the  residue. 

Mrs.  Burgess  being  possessed  of  personal  property  of  inconsidera- 
ble amount,  and  of  real  estate  of  some  value,  first  devised  all  her 
right,  title,  and  interest  in  some  of  the  latter  to  trustees,  for  the  uses 
after  mentioned.  She  then  directed  the  trustees  to  sell  those  lands, 
and  to  apply  the  proceeds  in 'the  following  manner:  First,  she  de- 
sired her  funeral  expenses  and  debts  to  be  paid  out  of  the  purchase 
money  ;  then  particular  sums  to  certain  creditors  of  her  late  husband, 

(c)  Ante,  p.  465.  (b)  3  Ves.  103. 

(c)  2  Scho.  &  Lefroy,  538.  543.  -vid.  infra,  Chap.-  XXIV.  sec.  2.  div.  3. 


468  Exoneration  [Cn.  XII. 

She  proceeded  to  give  general  legacies,  including  20Z.  to  each  of  her 
executors  for  their  trouble,*"  the  said  several  sums  to  be  paid  by  her 
executors  and  trustees  out  of  the  money  to  arise  by  sale  of  the  lands," 
and  the  purchase  money  that  remained  after  payment  of  her  lega- 
cies, and  the  expenses  of  her  will,  she  directed  to  be  divided  into 
four  parts,  giving  the  shares  in  different  proportions  to  several  per- 
sons, and  ordering  "  the  same  several  legacies  to  be  paid  by  her  ex- 
ecutors, so  soon  as  they  could  dispose  of  the  estate."  She  then 
appointed  her  trustees  executors  and  trustees  of  her  will.  Lord/?e- 
desdale  was  of  opinion  that  the  personal  estate  was  the  primary  fund 
to  satisfy  those  demands  ;  observing,  "  the  construction  put  upon 
such  words  standing  singly,  had  ordinarily  been  that  for  payment 
of  debts,  funeral  expenses,  and  legacies,  the  real  estate  should  be 
applied  in  case  the  personal  should  not  be  sufficient ;  the  latter  be- 
ing the  primary  fund  applicable  to  the  discharge  of  those  obligations. 
That  it  was  generally  considered  a  testator  did  not  mean  to  charge 
a  fund  which  was  not  applicable  to  those  purposes  by  law,  without 
a  direction  so  to  apply  it,  except  in  aid  of  the  estate,  "  which  by  law 
was  so  applicable,  unless  there  were  expressions  strong  enough  to 
show  a  different  intention." 

Without  considering  the  circumstance  of  there  being  no  specific 
disposition  of  the  residue,  this  case  seems  to  be  governed  by  Lord 
Thurlow's  determination  in  ^ncaster  v.  Mayer.  The  testatrix  ap- 
pointed her  trustees  also  executors^  blended  the  two  characters, 
directed  the  payments  to  be  made  by  them  as  trustees  and  executors. 
"  The  appointment  of  the  trustees  executors  (said  Lord  Redesdale) 
gives  them  prima  facie  the  personal  estate  for  the  purposes  of  her 
will,  and  their  duty  as  executors  is  to  pay  her  debts,  funeral  expen- 
ses, and  the  probate  out  of  that  fund,  the  receipt  of  which  charges 
them  as  debtors  to  the  creditors  of  the  testatrix.(d) 

But  to  avoid  mistake,  it  is  to  be  observed,  that  neither  of  the  last 
two  cases  meant  to  determine,  where  a  testator  has  exempted  his 
personal  estate  from  debts  and  legacies,  and. directed  them  to  be 
paid  out  of  his  real  property,  making  no  disposition  of  the  personalty, 
that  his  executor  or  next  of  kin  should  not  have  the  benefit  of  the 
exemption.  They  only  import,  consistently  with  Lord  Eldon's  ob- 
servations in.  Milnes  v.  Slater, (e)  that,  when  a  testator  has  not  in 
words  exempted  the  personal  assets  from  debts  and  legacies,  but  his 
intention  to  do  so  is  to  be  collected  by  inference  from  the  whole  of 
his  will,  and  there  is  no  disposition  of  the  personal  fund,  except  in 
the  appointment  of  an  executor,  the  inference  from  that  nomination 
will  not,  of  itself,  be  considered  sufficient  to  exonerate  the  personal 
estate,  whether  the  executor  take  it  beneficially  or  as  a  trustee  for 
the  next  of  kin  ;  because,  to  the  office  of  executor  the  payment  of 
debts  and  legacies  is  naturally  attached ;  and,  as  the  executor's  legal 
right  is  merely  to  the  surplus,  after  those  obligations  have  been  sa- 
tisfied, the  testator  might  have  meant  nothing  more  in  the  nomina- 
tion of  executor.  But  where  a  testator  has  expressly  exempted  his 
personal  property  from  debts  and  legacies,  created  another  fund  for 
discharge  of  them,  and  made  no  disposition  of  his  personal  estate, 


d)  2  Scho.  &  Lefroy,  546.  547.  and  see  1  Meriv.  227.  and  infra t  sub-div.  2. 
<•)  8  Ves.  305. 


SECT.  III.]  of  the  Real  Estate.  469 

except  in  naming  an  executor,  then,  whether  he  take  that  fund  bene- 
ficially or  as  a  trustee  for  the  next  of  kin,  he  or  they  will  be  entitled 
to  it,  exonerated  from  those  payments ;  for  unquestionably  a  testa- 
tor has  the  power  to  make  such  an  arrangement,  in  relation  to  his 
estates,  as  between  his  real  and  personal  representatives. 

Following  the  current  of  preceding  authorities,  Lord  Jllvariley 
decided  the  case  of  Brummell  v.  Prothero,(f)  which  was  to  the 
following  effect : 

Mr.  Bkwitt  devised  his  real  estates  to  a  trustee,  first  to  pay  all 
his  debts.  He  then  gave  two  annuities  out  of  the  property,  and, 
subject  to  and  charged  with  them,  he  devised  the  estates  to  his 
brother  Edward  in  strict  settlement,  with  remainders  over.  Last- 
ly, he  bequeathed  to  his  same  brother  all  his  monies,  goods,  chat- 
tels, rights,  credits,  personal  estate,  and  effects,  and  appointed  him 
sole  executor.  Lord  Alvanley  determined*  that  the  general  rule 
must  prevail,  and  the  personal  estate  be  first  applied  in  discharge 
of  debts. 

The  reader  will  have  remarked  the  coincidence  of  the  last  case 
with  the  preceding  authorities  of  Hareivood  v.  Child  and  Haslewood 
y.  Pope,  before  stated, (g)  in  Lord  Mvanley  considering  a  bequest  of 
all  a  testator's  property,  to  the  person  named  sole  executor,  equally 
residuary,  as  if  it  had  been  expressly  given  by  the  term  residue,  and 
therefore  as  affording  no  inference  of  an  intention  to  exempt  it  from 
debts. 

Tait  v.  Lord  Northwick(h)  is  another  case  decided  by  Lord  Ross- 
lyn  on  the  present  subject,  and  in  conformity  with  the  general  rule. 
There  real  estates  were  vestedj  by  settlement,  in  persons,  in  trust  to 
pay  debts,  and  subject  thereto,  and  to  some  other  charges,  they  be- 
came disposable  by  the  appointment  of  Richard  Middleton,  thetesta- 
tor,  who  appointed  them,  and  also  devised  other  estates  of  his  own 
to  three  trustees,  in  trust  by  sale,  mortgage,  &c.  to  pay  debts  owing 
to  a  particular  creditor,  and  all  his  (the  testator's)  other  debts  with 
interest,  and  to  defray  the  interest  of  money  to  be  borrowed  out  of 
the  rents,  and  to  apply  the  surplus  rents  in  reduction  of  principal. 
The  trustees  were  directed,  after  fulfilment  of  these  trusts,  and  pay- 
ment of  the  costs  attending  their  execution,  to  convey  the  estates  un- 
sold to  the  uses  and  upon  the  trusts  of  the  settlement  ( after  payment 
of  the  debts,  &c.  thereby  directed  to  be  discharged,)  which  were  to 
the  testator  in  tail,  with  remainders  over.  After  giving  to  each 
trustee  a  legacy  of  100J.  the  testator  bequeathed  the  residue  of  his 
personal  estate  equally  between  his  two  sisters,  and  appointed  two 
of  his  trustees  executors.  Lord  Rosslyn  was  of  opinion,  that  the 
personal  fund  was  primarily  liable  to  pay  the  debts. 

His  Lordship  observed,  "  that  charging  the  real  estate  ever  so 
anxiously  for  the  discharge  of  debts  would  not  of  itself  exempt  the 
personal,"  a  proposition  clearly  established  by  the  preceding  cases. (i) 
And  it  is  worthy  of  notice,  that  his  Lordship  thought  neither  the  gift 
of  the  residue  nor  the  direction  for  payment  of  the  expenses  of  per- 
forming the  trusts,  as  being  only  applicable  to  the  real  estates,  was 
sufficient,  in  concurrence  with  the  charge,  to  show  a  clear  and  satis- 

(/)  3  Ves.  111.  (g)  Ante,  p.  464.  (A)  4  Ves.  816. 

(i)  See  Aldridge  v.  Lord  Wallscourt,  1  Ball.  &  Beat  312,       . 
VOL,,  i.  3  O 


470  Exoneration  [Cn.  XII. 

factory  intention  in  the  testator  to  exonerate  the  personal  estate 
from  its  legal  obligation. 

The  last  authority  seems  to  have  been  the  basis  upon  which  Lord 
Alvanley  decided  the  case  of  Hartley  v.  Hurle,(k)  which  is  a  de- 
termination, that  where  debts,  legacies  and  funeral  expenses  are 
charged  upon  the  real  estate,  and  the  personal  property  is  bequeath- 
ed with  the  real,  as  "  rest  and  residue  not  otherwise  disposed  of," 
the  personal  estate  will  not  be  exonerated  from  the  payment  of  debts. 
His  Lordship  considered  such  a  disposition  to  import  nothing  more 
than  a  gift  of  what  was  not  before  given,  not  as  a  specific  legacy, 
but  a  bequest  of  what  might  have  been  omitted 

The  case  was  this :  Mr.  Allen  directed  all  his  debts,  funeral,  and 
testamentary  expenses  to  be  in  the  first  place  fully  satisfied.  He 
then  gave  to  his  wife  specific  legacies  of  household  goods,  &c.  and 
money,  and  gave  and  bequeathed  his  real  estate  and  money  in  the 
funds  to  trustees,  upon  trust,  "  out  of  the  rents  and  dividends  to  pay 
his  debts,  funeral,  and  testamentary  expenses,  and  the  several  lega- 
cies after  mentioned,"  which  he  proceeded  to  enumerate,  and  then 
gave  general  legacies  ;  and  out  of  the  same  rents  and  dividends,  an 
annuity  to  his  wife  for  life,  bequeathing  the  surplus  rents  and  divi- 
dends ip  trust,  that  his  trustees  should  pay  them  into  the  proper 
hands  of  his  daughter  Ann,  until  his  grand-daughter  attained  twenty- 
one  or  married  ;  on  either  of  which  events,  the  grand-daughter  was 
to  receive  an  annuity  of  3001.  for  life  out  of  the  rents  and  dividends, 
and  the  residue  of  them  was  to  be  paid  into  the  hands  of  his  daugh- 
ter for  life,  remainder  as  to  the  lands  themselves,  and  the  stock,  to 
his  grand-daughter  absolutely.  The  testator  then  declared,  that  the 
leaseholds  should  not  be  sold,  and  gave  the  residue  of  his  real  and 
personal  estates,  "  not  by  him  otherwise  disposed  of,"  to  his  daugh- 
ter absolutely,  and  appointed  her  and  the  trustees  executors.  Lord 
Alvanley  was  of  opinion,  that  the  personal  estate  was  the  primary 
fund  for  the  payment  of  debts. 

In  the  last  case  we  perceive,  that  neither  the  direction  to  pay  the 
debts,  &c.  out  of  the  rents  and  dividends  of  the  real  and  funded 
property,  nor  the  gift  to  the  daughter  of  the  personal  residue,  was 
sufficient  to  counteract  the  general  rule.  In  order  to  have  such 
effect,  the  inference  of  the  testator's  intention  to  exonerate  his  per- 
sonal estate  ought  to  have  been  so  dear  as  to  have  left  no  doubt  upon 
his  Lordship's  mind,  which  was  not  so  in  the  present  case  ;  his  Lord- 
ship observing,  that  he  found  no  case  in  which  a  testator,  after 
beginning  with  a  direction  for  the  payment  of  debts  and  funeral  ex- 
penses (which  naturally  fall  upon  the  personal  estate  and  are  to  be 
paid  by  the  executors)  has  created  a  fund  for  his  debts  and  funeral 
expenses,  and  then  given  the  residue  by  such  words  as  those  before 
stated  (for  the  residue  was  not  settled  to  the  daughters  separate 
use,)(l)  and  it  had  been  held,  that  he  meant  that  trust  fund  as  any- 
thing more  than  auxiliary,  if  the  personal  estate  should  be  deficient; 
and  with  that  impression  his  Lordship  said,  he  was  not  at  liberty  to 
determine  in  favour  of  the  residuary  legatee. 

With  respect  to  charging  the  funeral  expenses  upon  the  real  estate, 

(fc)  5  Ves.  540.  and  see  1  Meriv.  236. 

(0  See  Greene  v.  Greene,  4  Mad.  148.  stated  infra. 


SECT.  III.]  of  the  Real  Estate.  471 

it  will  have  been  remarked  in  the  perusal  of  the  preceding  cases, 
that  .in  some  of  them  those  expenses  have  been  charged  upon  that 
fund,  and  not  in  others;  and  yet  the  determinations  have  been  uni- 
form against  the  exoneration  of  the  personal  estate.  The  attention 
of  the  reader  is  drawn  to  this  observation,  since  in  the  authorities 
which  will  be  stated  under  the  second  subdivision  of  this  section, 
it  will  appear  that  such  a  charge,  in  concurrence  with  other  cir- 
cumstances, has  had  importance  attached  to  it,  in  exempting  the 
personal  estate  from  debts,  &c.  upon  the  reasoning,  that  as  funeral 
expenses  particularly  attach  themselves  to  the  personal  fund  in  the 
hands  of  executors,  the  testator,  by  transferring  that  duty  from  them 
to  the  trustees  of  the  real  estate,  must  have  intended  to  give  the 
whole  of  the  personalty  to  the  legatee,  specifically  discharged  from 
every  obligation  to  which  it  was  naturally  liable.  But  that  such  a 
charge  of  itself  will  not  have  that  effect,  the  preceding  authorities  and 
the  case  which  next  follows,  clearly  prove;  such  charge  neverthe- 
less will  be  entitled  to  consideration  in  the  scale  of  circumstances 
attending  each  case.  In  Brydges  v.  Phillips,  Sir  W.  Grant,  in 
reference  to  this  subject,  observed,  "  that  in  that  case  there  was  no 
provision  for  the  payment  of  funeral  expenses,  an  omission  which 
in  some  of  the  late  cases  had  full  as  much  weight  given  to  it  as  it 
deserved,  and  it  was  perhaps  true,  as  stated  by  Lord  Hardwicke,(m) 
that  it  was  more  a  phrase  of  form  than  indicating  a  settled  intention, 
and  that  either  the  insertion  or  omission  of  it  meant  little."(n) 

The  case  of  Brydges  v.  Phillips(o)  was  to  the  following  effect: 
Mr.  Brydges  having  a  daughter  about  four  months  old,  devised  all 
his  real  estates  not  included  in  his  marriage  settlement,  and  since 
purchased  by  him,  to  trustees,  to  sell  a  sufficient  part  of  them  and 
apply  the  produce,  in  the  first  place,  in  payment  of  debts  (except  a 
mortgage  and  charge,)  and  in  the  next  place,  to  raise  and  pay  1000J. 
to  his  half  sister,  and  4000/.  to  his  wife,  to  whom  he  devised  for  life 
his  unsettled  estates,  and  also  his  settled  estates,  if  he  died  without 
leaving  issue  male,  remainder  to  his  daughter  in  tail,  remainder  to 
his  two  sisters  in  fee.  Ke  then  settled,  as  heir-looms,  articles  of 
personal  property  for  the  use  of  his  wife  and  the  persons  to  succeed 
to  his  real  estates  ;  and,  after  giving  to  his  father  an  annuity  for  life, 
which  he  charged  upon  the  unsettled  estates,  and  legacies  to  servants 
and  to  his  trustees,  which  he  directed  to  be  paid  out  of  his  personal 
estate,  not  settled  as  heir-looms,  he  bequeathed  the  residue  of  his 
personal  property  to  his  dear  wife,  whom  with  his  trustees  he  ap- 
pointed executors.  Sir  W.  Grant,  M.  R.  determined,  that  the  per- 
sonal estate  was  the  primary  fund  for  paying  the  debts. 

Although,  in  the  last  case,  there  was  ample  room  to  conjecture, 
that  the  testator  intended  his  wife  to  take  the  personal  estate  free 
from  incumbrance,  in  the  nature  of  a  specific  legacy,(p)  yet  the  in- 
tention was  not  so  plainly  shown  as  to  authorize  the  Court  to  dis- 
place the  general  rule.  Minute  criticisms  were  afforded,  which  his 
Honour  (in  imitation  of  Lord  Thurlow  in  Jlncaster  v.  Mayer,(q) 

(m)  2  Atk.  626.  fn)  6  Ves.  570.  (o)  Ibid.  567. 

(/z)  Where  such  a  bequest  failed  to  exempt  the  personal  estate,  see  Dolman  v. 
Smith,  ante,  p.  464.  Tait  v.  Lord  Northwick,  ante,  p.  469.  Hartley  v.  Hurle, 
ante,  p.  470.  Tower  v.  Rons,  infra,  p.  473.  and  see  infra,  sub-div.  2. 

(q)  Ante,  p.  466. 


472  Exoneration  [Cn.  XII. 

considered  to  be  more  liable  to  mislead  than  to  assist  in  discovering 
the  intention  of  the  testator.  It  was  the  opinion  of  the  Court,  that 
neither  the  manner  in  which  the  real  estates  were  given  and  charged, 
nor  the  mode  in  which  the  residuary  personal  fund  was  given,  viz. 
after  the  bequests  of  the  heir-looms  and  legacies  (his  Honour  con- 
curring in  opinion  with  Lord  Rosslyn  in  Tait  v.  Lord  Northwick,)(r) 
was  sufficient  to  exonerate  the  personal  estate. 

The  next  case  determined  by  the  same  learned  Judge,  is  an  autho- 
rity that,  if  a  testator  expressly  charge  his  personal  estate  with  debts 
of  a  particular  description,  viz.  with  those  by  simple  contract,  and 
then  bequeath  that  fund,  it  will  not  be  discharged  from  debts,  &c. 
generally,  for  although  there  arise  a  presumption  from  such  a  partial 
charge,  that  other  debts  were  meant  to  be  excluded  and  cast  upon 
the  real  estate,  yet  that  presumption  is  not  so  clear  and  conclusive 
as  to  render  the  general  rule  inapplicable.  It  alone  does  not  reach 
the  standard  of  plain  intention  required  by  Lord  Thurlow  in  Ancaster 
v.  Mayer. 

Accordingly  in  Watson  v.  Brickwood,(s)  Mr.  Watson  devised  his 
real  estates  to  a  trustee,  &c.  but  beneficially  to  his  two  nephews, 
William  Wood  and  Richard  Baker,  for  life,  with  remainders  over. 
He  then  gave  legacies  to  his  nieces,  payable  at  the  end  of  a  year* 
after  his  death,  and  bequeathed  all  his  goods,  chattels,  personal  es- 
tate, and  effects,  not  thereinbefore  disposed  of,  to  his  nephew  Wil- 
liam, "he  paying  thereout  all  legacies,  funeral  expenses,  and  simple 
contract  debts."  The  testator  then  noticed  his  being  indebted  by 
mortgages  and  bonds,  for  money  borrowed  to  pay  for  some  of  the 
estates  he  had  purchased,  and  directed  that  those  debts  should  be 
paid  by  the  devisees  of  his  real  estates  in  equal  proportions,  in  the 
manner  he  prescribed.  After  giving  an  annuity  to  a  servant  out  of 
his  real  property,  he  appointed  his  -nephew  William  Wood  sole  ex- 
ecutor. It  is  observable,  that  the  will  does  not  charge  the  real 
estate  with  any  of  the  debts ;  but  the  testator  added  a  codicil,  by 
which,  after  appointing  a  trustee  in  the  place  of  the  one  named  in 
the  will,  he  empowered  the  new  trustee,  "  in  order  to  raise  money  for 
the  payment  of  all  his  debts  and  legacies,  to  mortgage,  with  the  ap- 
probation of  the  taker  for  the  time  being  of  his  estates,  a  competent 
part  of  his  freehold  estates."  Sir  W.  Grant  was  of  opinion,  upon 
the  authority  of  Tait  v.  Lord  Northwick,(t)  that  the  personal  estate 
was  not  exonerated  in  the  present  case. 

The  remarks  which  occur,  on  perusing  the  last  case,  are  these ; 
that  the  charge  of  debts  generally  upon  the  real  estate,  by  the  codi- 
cil, seems  to  destroy  the  implication  that  in  charging  the  personalty 
by  his  will  with  those  by  simple  contract  only,  the  testator  intended 
to  exempt  it  from  those  by  specialty.  The  manner  in  which  the  real 
estate  is  charged  seems  to  prove  this.  It  is  directed  to  be  mort- 
gaged in  order  to  raise  money  to  pay  all  debts  and  legacies,  i.  e.  to 
raise  money,  if  necessary,  in  aid  of  the  personal  estate.  That  the 
real  estate  was  to  be  the  fund  first  liable  to  all  those  demands  could 
not  have  been  intended,  since  the  personal  estate  was  expressly 
given,  subject  to  simple  contract  debts  and  all  legacies.  If  then  the 
real  estate  was  clearly  auxiliary  to  answer  those  demands,  it  would 

(r)  Ante,  p.  469.  (s)  9  Ves.  447.  (t)  Ante,  p.  469. 


SECT.  III.]  of  the  Real  Estate.  473 

have  been  too  much  for  the  Court,  under  the  general  charge  upon 
the  latter  fund,  to  have  made  it  primarily  liable  to  the  debts  by 
specialty. 

Sir  William  Grant's  attention  was  again  called  to  the  present 
subject  in  Tower  v.  Lord  Rous,(u)  in  which  his  decision  was  in 
conformity  with  the  several  authorities  before  stated. 

In  that  case  Mr.  Tower  devised  his  real  estates,  subject  to  the 
mortgages  upon  them,  and  to  the  payment  of  his  debts  and  legacies 
to  trustees  for  a  term  of  1000  years,  remainder  to  .his  eldest  son  for 
life,  remainder  to  the  son's  male  children  successively  in  tail  male, 
with  remainders  over,  directing  his  leasehold  property  to  be  settled 
in  the  same  manner  as  his  freehold  estates,  so  far  as  the  law  would 
permit.  The  trusts  of  the  term  were  to  raise  a  portion  for  his  eldest 
daughter,  and  to  sell  part  of  his  freehold  or  copyhold  estates  to  dis- 
charge mortgages,  "  and  all  his  debts  and  legacies,"  and  the  testator 
declared,  that,  if  he  were  entitled  to  any  money  as  personal  estate, 
charged  upon  any  part  of  his  real  property  before  devised,  it  should 
be  extinguished  for  the  benefit  of  the  persons  entitled  under  the 
limitations  in  his  will.  The  testator,  after  giving  to  his  wife  a  legacy, 
and  half  of  his  plate  and  linen  at »#.,  and  the  whole  of  his  furniture 
at  B.,  the -best  of  his  carrriages,  two  coach  horses,  and  two  saddle 
horses,  bequeathed  the  residue  of  his  personal  estate  to  such  one  of 
his  sons,  as  should  at  his  death  be  his  eldest  son,  and  entitled  to  the 
possession  of  his  devised  freehold  estates ;  and  appointed  his  wife 
trustee,  and  the  plaintiff  his  eldest  son,  executor.  Sir  W.  Grant  de- 
termined that  the  personal  estate  was  first  applicable  to  the  satis- 
faction of  debts  and  legacies. 

The  grounds  of  the  decree  appear  to  have  been  the  following : 
1st,  Because  there  was  nothing  particular  in  charging  the  real  es- 
tate, Jior  in  declaring  the  trusts  of  the  term,  nor  otherwise  denoting 
the  testator's  intention  to  make  the  real  property  the  primary,  still 
less  the  exclusive  fund  for  paying  the  debts  and  legacies :  2dly,  be- 
cause the  bequest  of  the  personal  estate  was  no  more  than  the  ordi- 
nary residuary  clause,  commencing  with  the  word  "residue  :"  3dly, 
because  the  residuary  legatee  could  not  take  specifically  what  re- 
mained of  the  personalty,  after  separating  the  particular  articles 
given  to  the  widow,  in  consequence  of  the  funeral  and  testamentary 
expenses  to  which  it  was  liable,  not  being  charged  upon  the  real 
estate;  an  omission  and  liability  that  afforded  &n  inference  of  the 
testator's  intention  not  to  give  the  personal  fund  as  a  specific  legacy ; 
and  lastly,  because,  instead  of  the  intent  appearing  to  increase  the 
personal  estate,  at  the  expense  of  the  real,  the  contrary  seemed  to 
be  the  object,  from  the  direction  for  the  extinguishment  of  any  per- 
sonal demands  the  testator  might  have  upon  the  lands  for  the  benefit 
of  the  devisees,  as  also  from  the  personal  estate  not  being  given  to 
any  one  by  name,  but  to  such  son  of  the  testator  as  should  be  the 
eldest  at  his  death  and  entitled  to  the  real  estates,  a  circumstance, 
which  showed  no  special  predilection  for  the-  person  of  the  casual 
legatee,  and  therefore  no  particular  motive  for  such  a  legatee  taking 
the  residue  exempt  from  the  natural  charges  to  which  it  was  liable. 
All  these  circumstances  were  in  corroboration  of  the  general  rule, 

(u)  18  Ves.  132. 


474  Exoneration  [Cn.  XII. 

according  to  which,  debts  and  legacies  were  to  be  paid  out  of  the 
personal  estate  in  the  first,  instance. 

The  reader  will  have  discovered  throughout  the  long  line  of  cases 
which  have  been  considered,  how  uniformly  they  support  the  rule  of 
law,  which  subjects  the  personal  estate,  in  the  first  place  to  the  dis- 
charge of  debts,  legacies,  funeral  and  testamentary  expenses.  We 
have  seen  that  a  mere  bequest  of  the  residuary  personal  estate,  by 
the  term  "  residue,"  or  by  the  words  "  all  my  personal  estate,"(x) 
or  even  after  previous  sums  or  articles  were  given  out  of  it  ;(i/)  and 
although  the  residue  bequeathed,  as  of  personal  property  "  not 
otherwise  disposed  of"(2r)  were  not  singly  sufficient  to  exempt  that 
fund  from  its  natural  obligation  to  pay  debts,  &c.:  also,  that  whether 
the  real  estate  be  charged  with,  or  be  given  in  trust  to  pay,  debts 
and  legacies,  or  a  term  of  years  be  created  for  those  purposes,  still 
the  personal  estate  must  be  first  applied. (a)  We  have  further  seen, 
that  neither  the  devise  for  payment  of  debts,  &c.  out  of  the  rents  of 
real  estates  ;(&)  nor  the  mere  charge  of  funeral  expenses  upon  that 
fund,(c)  or  an  express  charge  of  only  some  of  the  debts  upon  the  per- 
sonalty,^) will  exempt  the  latter 'fund  from  its  legal  liability.  Yet 
a  testator  may,  if  he  please,  give  his  personal  estate  as  against  his 
heir,  or  any  other  representative,  discharged  from  the  payment  of 
his  debts  and  legacies.  The  only  question  therefore  is,  what  is  the 
mode  of  expression  sufficient  to  exempt  that  fund,  when  by  the  rule 
of  law  it  is  first  liable1?  It  was  laid  down  in  the  case  of  Fereyes  v. 
Robertson,(e)  that  express  words  of  exemption  were  necessary  ;  and 
the  same  doctrine  was  asserted  in  Dolman  v  Smith.(f]  But  this 
sound  rule  has  not  been  adopted  in  modern  cases.  Lord  Thurlow 
•considered,' that  "  declaration  plain,"  or  "manifestation  clear,"  upon 
the  face  of  the  will,  was.  to  stand  in  the  place  of  express  words,(g) 
terms  explained  by  Lord  Mvanley  to  mean  "  such  an  inference  as 
left  no  doubt  upon  the  mind  of  the  person,  who  was  to  decide  the 
question. "(A)  It  is  now  settled  that  express  words  to  .exonerate  the 
personal  estate  are  not  required,  but  that  the  fund  will  be  exempted, 
if  the  intention  of  the  testator  in  its  favour  can  be  collected  from  a 
sound  interpretation,  put  upon  the  whole  will.(i)  The  result  is,  that 
what  the  law  had  originally  settled  beyond  the  possibility  of  doubt 
and  controversy,  is  now  left  without  rule  or  standard  to  the  arbitrium 
of  every  Judge,  whose  talents  and  perceptions  being  unequal,  una- 
nimity of  opinion  caniiot  be  expected  in  all  the  determinations  upon 
the  present  subject.  It  is  not  then  one  or  two  circumstances  which 
will  have  the  effect  of  exonerating  the  personal  estate  ;  but  if  all  the 
circumstances  united  leave  no  doubt  in  the  mind  of  the  Judge,  (he 
paying  proper  respect  to  preceding  authorities,)  that  the  testator  in- 
tended to  exempt  his  personal  estate,  that  intention  will  be  effec- 
tual. It  is  therefore  proposed  to  consider  the  cases,  in  which  the 
personal  estate  was  exempted  in  the  first  place  from  satisfying  debts, 
&c.  under  the  following  title  : 

.  2.  When  the  real  estate  will  be  considered  the  primary  fund  for 
the  payment  of  debts  and. legacies. 

(JT)  Ante,  pp  463.  469.  (t/)  Ante,  pp.  464.  468.  469.  470.  473.  (z)  Ante,  p.  470. 
(a)  Ante,  p.  466.  (A)  Ante,  p.  470.  (c)  Ibid.  pp.  467.  470.  (rf)  Ante,  p.  472. 
(e)  Bumb.  310.  (/)  Pre.  Ch.  458.  (,§•)  1  Bro.  C.  C.  462.  (A)  3  Ves.  113. 
(0  4  Ves.  823.  9  Ves.  454.  1  Meriv.  219.  220. 


SECT.  III.]  of  the  Real  Estate.  475 

The  question  in  each  particular  case  of  exemption  resolves  itself 
into  this  :  "  Does  there  appear  from  the  whole  testamentary  disposi- 
tion taken  together,  an  intention  on  the  part  of  the  testator  so  ex- 
pressed, as  to  convince  a  judicial  mind,  that  it  was  meant,  not  merely 
to  charge  the  real  estate,  but  so  to  charge  it,  as  to  exempt  the  per- 
sonal 9  For  it  is  not  by  an  intention  to  charge  the  real,  but  by  an 
intention  to  discharge  the  personal  estates,  that  the  question  is  to  be 
decided. (k)  By  this  test  we  shall  examine  the  following  cases,  and 
endeavour  to  distinguish  such  as  are  properly  decided  from  those 
which  are  not  so  determined. 

In  Waise  v.  Whitfield,(l)  the  testator  devised  lands  to  trustees  to 
sell  for  payment  of  debts  and  legacies,  and  bequeathed  to  his  wife 
the  residue  of  his  personal  estate,  to  whom  he  also  gave  600Z.  out 
of  the  produce  .from  the  sale  of  the  trust' estate.  Lord  Harcourt, 
C.  was  of  opinion  that  the  personal  fund  was  exonerated  from  the 
above  payments. 

His  Lordship's  judgment  was  founded  upon  the  additional  gift  of 
the  600Z.  as  affording  the  strongest  presumption,  that  the  testator 
intended  to  give  his  wife  the  whole  of  his  personal  estate,  not  con- 
sidering the  amount  of  that  fund  sufficient  for  her. 

The  discharge  of  the  personal  estate  in  Adams  v.  Meyrick,(m) 
seems  to  have  been  founded  upon  the  supposition,  that  the  resi- 
duary personal  estate,  being  preceded  by  a  specific  bequest  of  seve- 
ral chattels,  the  residue  was  also  intended  to  be  specifically  given 
to  the  wife  exempt  from  debts  and  legacies.  But  since  such  a  resi- 
duary disposition  may  be  equally  considered,  as  importing  nothing 
more  than  a  bequest  of  the  personal  estate  after  satisfaction  of  debts 
and  legacies,  -such  a  gift  of  the  residue  does  not  raise  that  plain 
and  satisfactory  inference  of  intention  to  discharge  that  fund,  as  is 
required  by  all  other  cases  for  the  purpose  of  exempting  the  per- 
sonal assets  from  their  legal  obligation. («)  This  case  therefore 
does  not  seem  to  be  authority  at  the  present  time,  that  such  a  mode 
of  bequeathing  the  residue  will  alone  repel  the  general  rule, 
although  it  may  have  that  effect,  when  explained  by  the  context 
of  the  will.(o) 

The  same  remarks  apply  to  the  cases  of  Wainright  v.  Bendlowes, 
( p)  Jlnderton  v.  Cooke^q)  and  Bicknel  v.  Page,(f)  which  appear  to 
have  been  decided  on  the  like  principle  as  the  last  case.  Upon 
this  point  Lord  Eldon  observed,  "  all  he  could  say  upon  it,  was, 
that  it  was  a  circumstance  deserving  of  just  so  much  weight  and  no 
more,  in  the  mind  of  any  individual  judge,  as  could  at  the  time 
bring  himself  to  consider  it  to  be  fairly  entitled  to."(s) 

If  then  a  residuary  bequest  preceded  by  legacies  of  specific  chat- 
tels be  insufficient  of  itself  to  discharge  the  personal  estate  from 
debts  and  legacies  ;  it  seems  to  be  a  natural  consequence,  that, 
where  the  personalty  is  given,  without  such  exceptions,  out  of  it,  it 
will  not  be  exonerated  in  the  hands  of  the  residuary  legatee  from 
debts,  &c. ;  yet  there  are  cases  to  the  contrary,  such  as  Kynaston 

(k)  I'Meriv.  230.  (/)  8  Vin.  Abr.  "Devise,"  437.  pi.  19. 

(m)  1  Eq.  Ca.  Abr.  271.  pi.  13.  (n).  See  ante,  p.  4/1.  and  the  references  there 
in  note  (/*.)  (o)  1  Meriv.  224.  (/*)  2  Vern.  718.  Prc.  Ch.  451  5.  C. 

(7)  Cited  1  Bro.  C.  C.  457.  (r)  2  Atk.  79.  (s)  1  Meriv.  236.  and  see 
Tower  v.  Row,  ante,  p.  473. 


476  Exoneration  [Cu.  XII. 

v.  Kynaston,(t)  Holliday  v.  Bowman,(u]  and  Gaskill  v.  Hough,(x) 
which  appear  to  be  over-ruled  by  other  authorities. (y) 

Under  this  head  may  be  classed  the  case  of  the  Attorney  General 
v.  Barkam,(z]  in  which  the  testator,  for  the  performance  of  his 
will,  and  payment  of  all  his  debts,  devised  his  real  estate.  And,  as 
to  his  personal  property,  he  gave  it  to  his  executors,  to  discharge  his 
funeral  expenses  ;  which,  if  deficient  for  that  purpose,  he  directed 
to  be  aided  by  the  application  of  the*  first  rents  and  profits  of  his 
real  estate  by  his  executors  until  all  his  debts,  legacies  and  funeral 
expenses  should  be  paid ;  and  if  there  were  any  surplus  of  his  per- 
sonal estate,  his  executors  were  to  pay  it  to  his  wife.  The  Court 
was  of  opinion,  that  the  wife  took  the  personal  estate  exonerated 
from  debts. 

The  effect  of  the  will  just  stated,  appears  to  be  simply  this  :  The 
testator  considering  that  his  personal  estate  might  be  insufficient  to 
pay  all  his  debts  and  funeral  expenses,  charged  his  real  estate  with 
the  former;  providing,  that  if  the  personal  fund  should  be  deficient 
to  pay  his  funeral  expenses,  they  should  be  satisfied  out  of  the  rents 
of  his  lands,  which  he  also  subjected,  in  that  event,  to  all  his  lega- 
cies, debts  and  funeral  expenses  ;  and  if  there  happened  to  be  a 
surplus  of  his  personal  estate,  it  was  to  be  paid  by  his  executors  to 
his  wife.  It  seems,  therefore,  that  what  was  given  to  the  wife  \vas 
a  mere  residue,  after  payment  of  debts,  legacies,  and  funeral  ex- 
penses, and  that  the  real  estate  was  only  intended  as  an  auxiliary 
fund,  or  at  least  that  the  contrary  intention  is  not  so  plain  and 
manifest,  as  required  by  modern  cases,  to  discharge  the  personal 
estate  by  implication. (a] 

In  Stapleton  v.  Colvile,(b}  the  testator  gave  to  his  wife  for  life 
his  real  estate,  charged  with  two  annuities  and  a  legacy  empower- 
ing her  to  raise,  by-  mortgage  or  sale,  sufficient  money  to  pay  his 
debts.  And,  after  reciting  the  great  satisfaction  he  had  of  his 
estate  having  continued  so  long  in  his  name  and  family,  and  the 
great  desire  he  had  to  perpetuate,  so  far  as  he  could,  his  name  and 
estate;  he  devised  all  his  real  estate,  after  his  wife's  death,  to  his 
nephew  for  life,  remainder  to  his  first  and  other  sons  successively 
in  tail,  &c.  upon  condition  of  their  taking  and  using  his  name  and 
arms  for  ever.  At  the  conclusion  of  the  will,  the  testator  be- 
queathed all  his  goods,  chattels,  and  personal  estate  to  his  wife,  and 
appointed  her  executrix.  Lord  Talbot  decreed,  that  the  wife  was 
entitled  to  the  personal  property  discharged  from  debts. 

His  Lordship  founded  his  judgment  upon  an  inference  of  the  tes- 
tator's intention  to  give  the  personal  estate  specifically  to  the  wife, 
presumed  from  his  giving  authority  to  her  to  dispose  of  the  inhe- 
ritance of  the  real  estate  to  pay  debts,  in  order  to  secure  to  her  the 
full  enjoyment  of  her  interest  for  life  in  it,  and  of  the  personal 
estate  absolutely  free  from  all  charges.  This  is  certainly  very 
flimsy  reasoning,  and,  if  deemed  sufficient  to  exonerate  the  per- 
sonal estate,  it  would  destroy  the  authority  of  the  cases  stated  in 

(0  Stated  1  Bra  C.  C.  457.  in  a  note.  (u)  Cited  1  Bro.  C.  C.  145. 

fir)  Cited  3  Ves.  110. 

(y)  See  ante,  pp.  463.  464.  Sam-well  v.  Wake,  ante,  p.  465.  and  Lord  Thur- 
iotv's  observations,  1  Bro.  C.  C.  466.  (z)  Cited  Forrest.  206. 

(a)  See  Tower  v.  Rous,  18  Ves.  132.  and  ante,  p.  473.  (6)  Forrest.  202. 


SECT.  III.]  of  the  Personal  Estate.  477 

the  first  subdivision  of  this  section.  Lord  Thurlow,  in  commenting 
upon  the  case,  observed,  that  the  wife  was  executrix ;  and,  exclu- 
sive of  the  context  of  the  will,  with  regard  to  the  option  given  her 
to  charge  either  fund,  there  never  was  a  stronger  case  against 
charging  the  real  estate;  for  the  testator  gave  the  whole  real  estate 
to  his  wife,  and.  to  be  charged  with  debts ;  he  wished  its  continu- 
ance in  his  name  and  family,  and  yet  charged  it  with  payment  of 
his  debts. (c)  That  he  meant  to  cast  his  debts  upon  the  lands,  in 
the  first  instance,  was  inconsistent  with  his  anxiety  to  preserve  his 
estate  in  his  name  and  family.  And  Lord  Mvanley,  in  allusion  to 
this  case,  remarked,  that  "  the  circumstance  laid  hold  of  by  Lord 
Talbot,  viz.  of  the  executor  having  the  power  to  raise  so  much  out 
of  the  estate  as  would  be  sufficient  for  the  debts,  did  not  satisfy  his 
tnind."(d)  This  case  may,  therefore,  be  considered,  as  not  afford- 
ing that  clear  indication  of  the  testator's  intention,  which  is  suffi- 
.eient  to  exonerate  the  personal  estate  from  its  legal  obligation. 

Lorq  Hardwicke,  in  Walker  v.  Jackson,  thought  the  circumstance 
of  the  personal  estate  being  expressly  given  by  codicil  to  the  execu- 
trixes, who  were  trustees  of  the  real  estate  charged  with  debts, 
legacies,  and  funeral  expenses,  was  sufficient  to  exonerate  the  per- 
sonal fund.  But,  when  it  is  remembered  that  the  fact  of  trustees 
being  also  appointed  executors,  has  been  generally  considered 
strong  evidence  against  the  exemption  of  the  personal  estate  ;(e) 
that  the  gift  of  the  personal  estate  to  executors  instead  of  raising  an 
inference  of  intention  to  bequeath  it  discharged  from  debts,  &c. 
seems  to  afford  a  contrary  implication, (/)  and  that,  at  the  utmost, 
the  disposition  could  only  have  the  same  effect,  as  if  it  had  been 
made  to  other  persons  ;(#)•  the  opinion  of  Lord  Hardwicke  may  be 
considered  as  open  to  objection. 

In  that  case, (h)  an  estate  in  the  county  of  Lincoln  was  given  by 
the  testator,  to  be  sold  by  his  executrixes,  for  the  payment  of  debts, 
legacies,  and  funeral  expenses ;  and  he  then  appointed  executrixes. 
In  consequence  of  the  same  persons  being  appointed  executrixes 
and  trustees,  Lord  Hardwicke  admitted,  that,  if  the  testator  had 
proceeded  no  further,  the  personal  estate  would  have  been  primarily 
liable  to  the  debts,  &c.;  but  then  followed  the  codicil,  giving -to 
the  executrixes  all  the  personal  estate  not  before  devised.  Upon 
this,  his  Lordship  observed,  that  "  a  stronger  circumstance  could 
not  be  than  the  testator  republishing  his  will  and  an  alteration  from 
what  it  was  before ;  and,  unless  it  were  construed  to  be  his  intention 
to  exempt  the  personal  estate  in  favour  of  the  executrixes,  the 
words  would  be  fruitless  and  vain,  and  did  no  more  in  their  .favour, 
than  the  will  as  it  originally  stood."  He  therefore  concluded,  that 
"  these  words  could  have  no  other  signification  than  to  exempt  his 
personal  estate." 

In  Ancaster  v.  'Mayer,  before  stated,(i)  Lord  Thurloiv  criticised 
the  above  reasoning,  remarked  it  was  unsound,  and  that  he  entirely 

(c)  1  Bro.  C.  C.  466.  (rf)  3  Ve.s.  110. 

(e)   VideAncaster  v.  Mayer,  1  Bro.   C.  C.  454.  ante,  p.  466.   and  M'Cldland  v. 
Shaw,  2  ^cho.  &  Lefroy,  538.  546. 

(  f)  Grail  v.  Wnnethorfie,  3  Ves,  103.  ante.  p.  467.     (g)  See  cases  stated  ante, 
p.  443.  etseq.  (A)  2  Atk.624.  1  Meriv.  222.  (f)  Ante,  p.  446. 

VOL.  I.  3    P 


H  Exoneration  [On.  XII. 

concurred  with  the  principle  laid  down  in  Stephenson  v.  Heath- 
cote,(k]  viz.  that  the  gift  of  the  personal  estate  to  a  person  who  is 
appointed  executor,  is  not  to  be  considered  as  a  legacy  exempt  from 
the  payment  of  debts. (I)  Lord  Eldon,  in  Bootle  v.  Blundell,(m} 
thus  stated  his  opinion  as  to  the  effect  which  ought  to  be  given  to 
the  circumstance  of  the  trustees  of  the  lands  charged  with  debts, 
dec.  being  appointed  executors.  "  In  Ancaster  v.  Mayer,  as  in 
many  preceding  cases,  very  considerable  stress  was  laid  on  the  cir- 
cumstance of  the  persons  who  were  appointed  executors,  being  the 
same  to  whom  the  real  estate  had  been  before  devised  as  trustees. 
In  other  cases,  this  circumstaace  is  considered  as  less  material;  but 
the  degree  of  weight,  to  which  it  is  entitled,  depends  upon  the  whole 
of  the  will  taken  together;  and,  if  a  distinction  is  to  be  discovered 
from  the  beginning  to  the  end  of  the  will,  between  what  they  are- 
called  upon  to  do  in  the  character  of  executors,  and  what  as  trustees  ; 
and,  if  he  (the  testator)  direct  them  a,s  trustees,  to  do  that  which  is 
properly  the  duty  of  executors,  this  is  a  circumstance  which  deserves 
also  to  be  attended  to,  in  determining  what  is  the  manifest  -general 
intention  of  the  testator." 

In  the  case  of  Williams  v.  The  Bishop  of  Landajf,(n)  Lord  Ken- 
yon  considered  the  will  to  afford  sufficient  evidence  of  the  testator's 
intention,  to  make  his  real  estates  the  primary  fund  for  the  payment 
of  debts,  legacies,  &c. 

There,  Mr.  Luther  being  seised  of  estates  in  the  counties  of  Essex 
and  Suffolk,  settled  his  estate  in  Essex  with  great  care,  directing  the 
devisees  to  take  his  name  as  they  severally  succeeded  to  the  enjoy- 
ment of  it.  His  Suffolk  estate  he  vested  in  trustees,  to  sell,  and 
apply  the  money  in  discharge  of  his  debts,  funeral  expenses,  and  the 
several  expenses  therein  mentioned;  and  within  a  year  after  his  death, 
to  set  apart  4000Z.  for  the  purposes  therein  expressed;  and  he  de- 
clared, that  if  the  estate  should  be  insufficient  for  these  purposes,  the 
deficiency  should  be  supplied  out  of  the  Essex  estate.  And,  after 
giving  specific  and  general  legacies,  the  testator  bequeathed  att  his 
ready  money,  &c.  and  all  other  his  personal  estate,  not  therein- 
before disposed  of,  to  Sarah  Williams  absolutely.  The  question 
was,  whether,  under  the  above  dispositions,  the  real  estates  were  the 
primary  funds  for  the  discharge  of  debts,  &C.1?  And  Lord  Kenyan 
determined  in  the  affirmative. 

The  principle  of  the  decision  appears  to  have  been,  that  the  cir- 
cumstance of  having  first  devised  one  estate  to  pay  debts,  &c.  and 
th'en  another  (which  had  been  cautiously  settled)  if  the  former  were 
deficient,  before  making  any  disposition  of  the  personal  property, 
and  then  disposing  of  the  latter  estate  singly,  and  entirely,  mani- 
fested a  sufficiently  clear  intention  that  the  real  estates  were  designed 
to  be  charged  with  debts,  &c.  in  preference  to  the  personal  estate, 
so  as  to  entitle  the  residuary  legatee  to  the  whok'of  the  latter  fund 
as  a specinVlegacy,  exonerated  from  those  demands;  aright,  which 
was  not  altered  by  the  testator  afterwards  disposing  of  the  Suffolk 
estate,  since  his  Lordship  held  that  the  Essex  estate  must  be  applied 
and  exhausted,  before  the  personal  was  to' be  resorted  to. 

(A-)  Stated  1  Bro.  C.  C.  466.  and  1  Eden-.  38.  (i)  1  Merlv.  224. 

(7rt)  1  Meriv.  227.  and  see  M'Clelandv.  Shaw,  stated  ante,  p.  467. 
(n)  1  Cox.  254. 


SECT.  III.]  of  the  Personal  Estate.  479 

The  decision  of  the  same  Judge  in  Webb  v.  Jones,(o]  does  not- 
appear  to  be  so  well  founded,  as  that  in  the  preceding  case ;  for 
there,  real  estates  were  devised  to  trustees  to  sell,*and  after  payment 
of  debts,  legacies,  &c.  in  trust  to  pay  half  of  the  net  proceeds  to  Ji. 
and  to  invest  the  other  moiety,  on  security,  and  apply  the  interest 
for  the  benefit  of  certain  persons  until  they  attained  the  ages  of 
twenty-four;  and  then  to  divide  the  capital  among  them, -but  with 
benefit  of  survivorship  upon  the  death  of  any  before  those  periods. 
And  the  testator  declared,  that  if  all  those  persons  died  under  twen- 
ty-four, "  the  moiety  should  sink  into,  and  be  deemed  part  of  the 
residue  of  his  personal  estate ;"  which  residue  he  bequeathed  to  two 
individuals  in  common,  in  the  usual  manner,  and  not  in  the  nature 
of  a  specific  legacy.  Lord  Kenyan  held,  that  the  personal  estate 
was  exonerated  from  the  debts,  &c.  in  consequence  of  the  direction, 
that  the  residue  of  the  purchase  money  of  half  of  the  real  estate  was 
to  be  added  to  the  personal;  a  circumstance,  which  his  Lordship 
conceived  to  be  incompatible  with  the  idea,  that  the  personal  estate 
should  be  applied  in  the  first  instance. 

It  seems  to  have  escaped  the  observation  of  his  Lordship,  that  the 
real  proceeds  being  made  part  of  the  personal  estate,  must  be  sub- 
ject to  the  same  rule  of  construction  .as  a  bequest  of  the  personal 
fund  itself;  which,  being  given  as  a  general  residue,  afforded  no  in- 
ference of  the  testator's  intention  to  exempt  it  from  its  legal  obliga- 
tions.    The  criticisms  of  Lord  fiedesdale  upon  this  case  settle  its 
degree  of  weight  and  authority.     "  Except  Webb  v.  Jones,  (said  his 
Lordship,)  there  is  not,  I  apprehend,  a  single  case,  in  which  it  has 
been  held  that  personal  estate  was  exempt  from  payment  of  debts, 
&c.  without  express  words  for  the  purpose;  except  where  it  has  been 
given  as  a  specific  legacy;  for,  if  it  be  given  in  terms,  which  do  not 
imply  that  it  was  intended  as  a  specific  legacy,  it  is  not  held  to  be- 
exempt  -from  the  charges,  which  the  law  imposes  on  it.     Many  cases 
have  gone  upon  nice  distinctions  of  the  word  "residue,"  whether 
it  meant  residue,  after  payment  of  debts  and  legacies,  or  residue, 
after  taking  out  certain  specific  parts.     But  every  specific  legacy 
is  exempt  from  debts,  if  there  be  a 'sufficient  fund  of  any  kind  liable 
to  them.     For  instance,  if  part  of  the  personal  estate  be  given  as  a 
specific  legacy,  and  the  real  is  left  to  descend  to' the  heir,,  the  per- 
sonal not  specifically  given,  is  first- applied;  but  the  specific  legatee 
is  entitled  to  have  the  debts,  which  bind  the  heir,  satisfied  out  of 
the  real  estate,  so  far  as  it  will  extend.     The  ground,  therefore,  of 
all  the  cases,  except  Webb  v.  Jones,  has  been,  that  the  terms  of  the 
disposition,  contained  in  the  will,  were  either  express,  ojc  such  as  to 
raise  a  presumption,  that  the  testator  meant  to  make  the  personal 
estate  the  subject  of  a  specific  bequest;  and,  therefore,  not  liable  to 
debts,  because  specifically  given  as  a  legacy.     Except  that  case,  I 
know  of  none,  .where  the  personal   estate,  not  given  as  a  specific 
legacy,  has  been  held  exempt  from  the  charges  the  law  imposes  on 
it,  without  express  words  denoting  the  intent.(ja)." 

But  when  the  personal  fund  is  intended  to  be  given  as  a  specific 
legacy,  it  is  not  easy  to  determine,  and  is  a  question,  upon  which 

(o)  1  Cox.  245.     2  Bro.'  C.  C.  60.  S.  C\  ( //)  2  Scho.  &  Lefroy,  544. 


Exoneration  [Cn.  XII. 

•  Judges  have  differed  in  opinion.  In  Burton  v.  Knowlton,(q)  Lord 
,  Ui-nnley  decided,  that  the  real  estate  was  primarily  liable  to  debts 
upon  these  grounds;  that  the  funeral  expenses  being  charged  upon 
the  lands,  and  the  residuary  personal  estate  given  to  the  executor 
beneficially,  in  default  of  appointment  by  the  testatrix,  (he  not  being 
a  trustee  of  the.  real  ;)  and  the  personal  estate,  although  given  in  the 
form  of  a  residue,  being,  as  he  conceived,  connected  with  preceding 
specific  dispositions,  were  sufficient  denotations  of  her  intent  to  ex- 
onerate the  personal  fund,  and  to  give  it  as  a  specific  legacy* 

Mrs.  Cockell  devised  her  freehold,  copyhold,  and  leasehold  estates 
to  two  trustees,  in  trust  to  make  immediate  sale,  and  to  discharge 
with  the  proceeds  all  her  debts  and  funeral  expenses,  also  to  invest 
the  surplus  in  stock,  and  to  apply  the  dividends,  and  the  rents  of  her 
unsold  estates  for  the  benefit  of  Mr.  Welch  for  life,  remainder  to  her 
heir  at  law  ;  to  whom  she  gave  several  articles  of  personal  property. 
She  then  gave  legacies ;  and  50iL  to  each  trustee  for  his  trouble, 
which  she  directed  to  be  retained  out  of  the  trust  premises ;  and 
after  giving  other  legacies,  the  testatrix  bequeathed  the  residue  of 
her  personal- estate,  not  before  specifically  disposed  of,  to  Mr.  Welch, 
in  trust  to  pay  the  same  a*  she  should  appoint,  and  in  default  of  ap- 
pointment, she  gave  it  to  him  for  his  own  use,  and  appointed  him 
executor.  Upon  the  grounds  before  stated,  Lord  Mvanley  deter- 
mined that  the  real  estate  was  the  primary  fund  for  the  payment  of 
debts.  He  remarked,  that,  although  the  words  "  funeral  expenses" 
comprised  in  this  trust,  occurred  in  some  of  the  cases,  and  were  held 
not  to  have  any  considerable  weight :  yet  that  was,  where  the  trust 
fund  was  given  to  the  executors,  to  whom  the  personal  estate  was 
afterwards  bequeathed ;  and  he  thought  that,  where  the  trust  fund 
was  given  to  trustees  in  such  general  words,  who  were  not  the  ex- 
ecutors upon  whom  the  funeral  expenses  would  naturally  fall,  it  did 
afford  a  considerable  argument,  that  the  testatrix  did  not  mean  the 
personal  estate  to  be  the  fund  for  all  those  charges,  which  naturally 
fall  upon  it.  His  Lordship  also  considered,  that  the  residue  was  not 
given  to  Mr.  Welch  as  executor,  but  beneficially ;  and  relied  upon 
the  case  of  Walker  v.  Jackson,  before  stated.  He  also  remarked, 
that  the  word  "  residue,"  being  coupled  with  the  expressions  "  not 
specifically  bequeathed,"  showed  the  testatrix's  meaning  to  be,  not 
a  residue  after  payment  of  debts,  but  after  such  parts  of  the  personal 
estate  as  were  not  specifically  given,  i.  e.  in  allusion  to  what  she  had 
before  given  to  her  heir,  or  to  leasehold  estates  which  she  had  be- 
queathed to  the  trustees. 

This  last  decision  was  not  satisfactory  to  Lord  Rosslyn:(r]  nor,  as 
it  seems,  to  Lord  Eldon,  who  said  he  was  not  sure  that  the  intention 
to  exonerate  the  personal  estate  was  quite  so  clear  as  Lord  Mvanley 
took  it  to  be.(«)  If  indeed  it  is  settled,  as  it  appears  to  be,  that 
there  is  no  difference  whether  the  personal  estate  be  given  in  express 
terms,  or  not,  to  a  person  who  is  named  executor,  since,  as  executor, 
he  must  in  either  case  take  it  subject  to  the  claims  of  individuals 
who  are  beneficially  interested,(f)  notwithstanding  Lord  Hardwicke's 

r?)  3  Yes.  107.  (r)  See  4  Ves.  823.  («)  1  Meriv.  229. 

(0  Ibid.  226.  etvidejincasterv.  Mayer,  1  Bro.  C.  C.  454.  Steti/iensonv.  Heath- 
coate,  1  Eden,  38.  1  Meriv.  224.  and  ante,  p.  466. 


SECT.  III.]  of  the  Personal  Estate.  481 

opinion  in  Walker  v.  Jackson:  and,  if  the  intention  to  exonerate  the 
personal  estate  from  its  being  given  as  residue,  "  not  before  specifi- 
cally disposed  of,"  may  be  considered  ambiguous, (w)  (since  probably 
those  words  may  have  been  inserted  without  particular  meaning  a*s 
mere  customary  expressions ;)  the  case  will  amount  to  no  more  than 
an  anxious  charge  of  debts  and  funeral  expenses  upon  the  real  es- 
tate, which  has  been  shown  to  be  insufficient  to  discharge  the  per- 
sonal fund.  And  with  respect  to  the  inference  arising  from  the 
funeral  expenses  being  charged  upon  the  real  estate,  Lord  Hard- 
wicke  and  Sir  W.  Grant  are  authorities  for  presuming,  that  no  great 
weight  is  to  be  attributed  to  that  circumstance. (x)  Lord  Jllvanley, 
upon  a  subsequent  occasion, (y)  expressed  his  satisfaction  with  his 
decree  ;  and  the  case,  in  consequence  of  what  has  fallen  from  Lords 
Eldon  and  Rosslyn,  is  an  instance  of  the  uncertainty  which  prevails 
upon  the  present  subject.  • 

The  following  is  an  authority  in  which  almost  every  circumstance 
occurred  which  had  been  the  subject  of  judicial  observations  in  pre- 
ceding cases,  and  upon  which  different  Judges  had  formed  different 
opinions  as  to  their  effect  singly  to  exonerate  the  personal  estate. 
Lord  Eldon,  after  sound  criticism  upon  every  part  of  the  will,  deter- 
mined, that  the  personal  fund  was  primarily  discharged  from  the 
payment  of  debts,  &c. 

In  Bootle  v.  Blundell,(z)  the  case  alluded  to,  the  testator  ordered 
his  funeral  expenses  to  be  paid,  and  bequeathed  to  his  two  daughters 
legacies  to  be  paid  by  his  executors,  and  directed  his  said  funeral 
expenses  and  legacies  to  be  paid  out  of  the  money  he  might  have  at 
his  death  at  Ince  or  the  Liverpool  bank,  or  due  to  him  from  the  bank 
at  the  latter  place,  and  out  of  rents  and  fines  which  should  be  then 
owing  to  him  ;  and  he  gave  the  surplus  of  those  funds  among  his 
children  equally ;  to  daughters  for  their  separate  uses  ;  concluding 
that  part  of  his  will  in  observing,  that  he  had  already  disposed  of 
certain  sums  and  securities  for  money,  which  he  lately  had  by  him  ; 
thus  referring  to  the  funds  above  appropriated,  and  making  them  the 
primary  funds  for  the  discharge  of  funeral  expenses,  and  the  sole 
funds  for  payment  of  those  legacies.  The  testator  then  devised  his 
manors  of  Lostock  to  trustees  for  five  hundred  years,  to  pay  out  of 
the  rents  and  profits  all  his  debts,  and  the  legacies  and  annuities 
therein-q/£er  mentioned,  or  to  be  given  by  a  codicil.  He  next  gave 
legacies  to  his  grandchildren,  and  300Z.  to  each  of  his  trustees  for  their 
trouble.  He  also  bequeathed  several  annuities  ;  and,  after  declaring 
that  his  trustees  and  executors  should  not  be  answerable  for  losses, 
he  ordered  the  expenses  they  might  incur  on  that  account  to  be 
charges  on  his  Lostock  estates,  and  to  be  paid  out  of  their  rents  and 
profits,  directing  the  term  to  cease  after  the  completion  of  its  trusts, 
and  satisfaction  of  all  the  charges  and  expenses  incident  thereto. 
Here  it  is  observable,  that  the  legacies  of  300Z.  are  given  to  the  trus- 
tees qua  trustees,  and  are  solely  payable  out  of  the  Lostock  estates. 
And  although  the  trustees  are  also  executors  (a  circumstance  relied 
upon  in  preceding  cases  as  an  argument  against  the  intention  to  ex- 
empt the  personal  estate,)  yet  that  argument  is  destroyed  when  it  is 

(u)  Ante,  p.  470.  (x)  Ante,  p.  470.  and'see  4  Mad.  156. 

(y.)  5  Ves.  545.  (z)  1  Menv.  193.  231. 


482  Exoneration  [Cn.  XII. 

remembered  that  this  testator  never  uses  the-  word  "  executors,"  but 
with  reference  to  his  personal  property,  nor  the  word  "  trustees,"  but 
in  reference  to  his  real  estate.  He  has  distinguished  their  offices, 
and  treated  their  duties  the  same,  as  if  his  executors  and  trustees 
had  been  different  persons.  The  circumstance  also  of  directing  the 
expenses  of  losses  incurred  "  by  his  executors  and  trustees"  to  be 
paid  out  of  the  Lostock  estates,  raises  a  powerful  inference  of  inten- 
tion to  exempt  the  personal  estate;  for  when  it  is  considered  that 
such  expenses  as  were  incurred  by  them  as  trustees  of  the  real  es- 
tate could  not  have  been  charges  on  the  personal  estate,  and  that 
those  expenses  are  blended  with  such  as  might  arise  .from  the  office 
of  executors,  and  the  whole  made  charges  upon  the  real  property,  it 
can  scarcely  be  doubted  but  that  it  was  meant  to  substitute  the  real 
in  the  place  of  the  personal  estate  ;  and  if,  as  to  these  expenses,  it 
tends  to  confirm  other  circumstances  in  the  will,  not  of  themselves 
sufficiently  clear  to  exempt  that  fund  from  debts,  &c.(a)  The  tes- 
tator then  proceeded  to  declare,  that,  subject  to  the  term  and  its 
trusts,  the  Lostock  estates  should  go  between  his  two  daughters  for 
their  lives,  with  remainder  to  their  respective  children  in  strict  set- 
tlement ;  and  he  directed,  that  so  soon  as  his  debts  and  legacies 
were  discharged,  and  security  given  to  the  trustees  for  payment  of 
the  annuities  and  expenses,  satisfactory  to  the  annuitants,  and  when 
all  expenses  in  the  execution  of  the  trusts  respecting  the  term  and 
of  his  will  should  be  fully  paid,  the  person  then  entitled  to  the 
Lostock  estates  should  be  let  into  possession  of  them.  The  will 
contained  a  power  to  appoint  new  trustees,  or  a  new  trustee,  who 
was  to  receive  300Z.  out  of  the  rents  and  profits  of  the  estates  com- 
prised in  the  term  ;  a  material  circumstance,  since  the  trustee  so  to 
be  appointed  would  not  be  an  executoi' ;  whence  the  inference  that 
the  300Z.  before  given  to  each  of.the  trustees,  who  were  also  executors, 
were  so  given  for  their  trouble  a*  trustees,  and  not  as  executors. 
The  testator  next  proceeded  to  give  his  son  other  lands,  called  the 
Lydia  estate,  for  life,  with  remainders  over,  which  were  neither 
charged  with  debts  nor  legacies  ;  and  having  thus  disposed  of  his  real 
estates,  without  making  any  bequest  of  his  general  personal  pro- 
perty, the  testator  proceeded  to  make  disposition  of  it ,  giving  to 
his  son  for  life,  with  remainders  over,  specific  parts  of  that  fund, 
consisting  of  curiosities,  to  go  as  heir-looms  with  the  estates  last 
devised,  intending  them  to  be  preserved  for  public  inspection  ;  a 
reason  which  accounted  for  their  separation  and  exemption  from 
debts,  &c.  without  necessarily  importing  that  the  residue,  which 
was  afterwards  given  to  his  son,  should  be  subject  to  those  charges. 
The  testator  then  gave  to  his  housekeeper  several  specific  articles 
of  furniture,  and  other  things,  directing  them  to  be  removed  by  his 
executors  with  all  convenient  speed  after  his  death,  at  the  expense 
of  his  personal  estate :  a  charge  not  necessarily,  implying  that  the 
debts  and  legacies  should  also  be  paid  out  of  that  fund.  The  tes- 
tator next  bequeathed  to  his  son  his  .household  furniture,  wines,  &c. 
and  personal  estate  "  not  thereinbefore  specifically  disposed  of,  or 
which  thereafter  might  be  disposed  of  by  him ;"  a  bequest,  which, 
not  being  in  the  form  of  residue,  and  enumerating  specific  articles, 

(a)  1  Meriv.  239. 


SECT.  III.]  of  the  Personal  Estate.  483 

had  been  considered  by  some  Judges,  though  not  by  others,  as 
raising  an  inference  of  intention  to  exonerate  the  personal  estate. 
But. Lord  Eldon  merely  declared  it  a  circumstance  only  to  be  taken 
into  account  in  considering  the  contents  of*  the  whole  will. (6)  The 
testator  added  a  codicil  to  his  will,  directing  that  any  expenses  which 
might  be  incurred  from  attempts  to  disappoint  his  will  in  any  of  its 
provisions  should  be  paid  out  of  the  Lydia  estate,  devised  to  his 
son  for  life  ;  and  he  created  a  term  of  1000  years  in  it  for  that  pur- 
pose :  a  direction  showing,  as  previously  in  the  will,  an  intent  to 
exonerate  the  general  personal  fund,  in  ordering  payment,  out  of 
the  real  estate,  of  expenses  which  the  personal  was  primarily  liable 
to  discharge.  Under  all  the  circumstances,  Lord  Eldon  expressed 
his  conviction,  that  the  testator  intended  to  exempt  his  general  per- 
sonal estate  from  the  payment  of  his  debts ;  and  so  decreed. 

The  dispositions  in  the  following  will  induced  Sir  John  Leach, 
V.  C.,  to  determine  that  the  real  estate  was  primarily  liable  to  the 
satisfaction  of  debts,  &c. 

In  Greene  v.  Greene,(cj  the  testator  began  his  will  in.  giving  to 
his  wife,  for  her  own  and  sole  use,(d)  all  his.  ready  money,  securities 
for  money,  goods,  chattels,  and  other  personal  estate  and  effects, 
except  such  parts  of  it  as  he  by  his  will  or  a  codicil  should  specifi- 
cally dispose  of.  He  then  devised  -his  real  estates,  subject  to  his 
debts  and  -funeral  expenses,  to  trustees,  in  trust  to  sell,  and  out  of 
the  proceeds  to  pay  his  debts,  funeral  expenses,  and  the  costs  of 
proving  his  will ;  and  to  lay  out  the  surplus  on  securities,  and  pay 
the  interest  to  his  wife  for  life;  and  to  distribute  the  capital,  after 
her  death,  among  her  children  by  the  testator,  as  therein  mention- 
ed ;  and  he  appointed  his  wife  and  the  trustees  executors.  The 
Court  held,  that  the  personal  estate  was  exonerated. 

The  prominent  features  of  the  last  case  appear  to  be,  the  mode 
in  which  the  personal  fund  is  -given  to  the  wife,  and  the  manner  of 
devising  the  real  estate  to  the  trustees  ;  viz.  subject  to  debts  and 
funeral  expenses.  The  personal  estate  is  first  bequeathed,  and 
disposed  of  as  a  whole.  So  much  only  is  to  be  deducted,  as  the  tes- 
tator may  afterwards  specifically -bequeath  :  a  circumstance  entitled 
to  some  consideration,  in  discovering  the  testator's  intention  in  re- 
gard to  exempting  the  personal  fund  ;  and  it  seems  to  raise  no 
slight  inference  in  the.  present  case,  that  he  meant  his  wife  to  take 
the  whole  personal  estate  as  a  specific  legacy.  The  weight  to  be 
attached  to  this  single  circumstance  is  increased  by  the  testator 
directing  his  funeral  expenses  and  the  costs  of  probate  to  be  paid 
out  of  the  real  estate ;  obligations  naturally  falling  upon  the  per- 
sonal fund.  These  circumstances  seem,  to  have  convinced  the 
Court  of  the  testator's  intention  to  exempt  his  personal  estate. 
Sir  John  Leach  thus  expressed  himself:  "The  direction  that  the 
trustees,  who  form  only  a  part  of  the  executorship,  should,  out  of 
the  produce  by  sale  of  the  real  estate,  pay  all  debts  and  expenses, 
and  after  payment  thereof  invest  the  surplus  for  the  benefit  of  the 
wife  for  life,  with  remainder  to  the  children,  when  coupled  with 

(6)  See  ante,.]).  475,  (0  4  Mad.  148. 

(d)  A  limitation  considered  of  importance  by  Lord  Aivanley.     See  Hartley  v. 
Hurle,  ante,  p.  470. 


484  Exoneration  .  [€H.  XII. 

the  circumstance,  that  the  devise  to  the  trustees  is  expressly  made 
subject  to  the  payment  of  debts  and  funeral  expenses,  and  with  the 
gift  to  the  wife,  for  her  own  sole  and  absolute  use,  of  all  the  testa- 
tor's ready  money,  &c.  does  appear  to  me  to  convey  a  clear  intima- 
tion of  intention,  not  that  the  real  estate  should  be  auxiliary  to 
the  personal,  but  that  the  real  estate  should  directly,  and  at  all 
events,  be  applied  as  the  primary  fund  for  payment  of  the  debts, 
funeral  expenses,  and  the  costs  of  the  probate ;  and  that  the  wife 
should  take  the  personal  assets  exempt  from  those  charges."(e) 

The  same  Judge  made  a  similar  decision  to  the  last  upon  nearly 
the  like  dispositions,  in  the  case  ofMichell  v.  Michell.(f) 

After  having  examined  the  preceding  line  of  cases,  rendered  con- 
tradictory and  difficult  by  a  departure  from  the  wholesome  rule 
which  required  express"  words  to  exonerate  the  personal  estate,  the 
reader  can  scarcely  avoid  concluding,  that  the  uncertainty  in  ques- 
tion on  the  present  subject  is  such,  as  to  render  useless  private 
opinion,  and  to  induce  the  necessity  of  resorting,  in  almost  every 
instance,  to  a  court  of  equity  :  and,  even  then,  so  little  uniformity 
of  decision  is  to  be  expected,  that  judgments  can  seldom  prove  satis- 
factory. There  can  be  but  one  opinion  respecting  the  inconve- 
niences attendant  upon  such  uncertainty ;  and  since  the  Courts  are 
now  restrained  by  later  decisions,  from  reverting  to  the  ancient  rule, 
the  present  appears  to  be  one  among  other  instances  wherein  it 
might  be  expedient  to  call  in  the  aid  of  a;  competent  tribunal  to  re- 
medy the  evil.  The  cdnfusion  prevailing  in  the  cases  is  thus  de- 
scribed by  Lord  Eldon:  "Upon  looking  through  the  several  cases, 
which  have  been  decided  during  the  period  of  more  than  a  century 
past,  I  think  I  should  have  been  authorized  to  say,  at  the  commence- 
ment of  it,  that  if  such  a  rule  were  laid  down,  (viz.  that  the  intent 
to  exempt  the  perso'nal  estate  must  be  manifested  in  such  a  manner, 
as  that  persons  out  of  Court,  on  reading  the  will,  could  not  fail  to 
agree  that  such  was  the  intention,)  there  could  never,  in  all  human 
probability,  be  any  decision  upon  a  will  furnishing  a  solution  of  the 
question,  and  now  at  the  dose  of  it,  I  think  I  am  authorized  to  say, 
that,  which  it  was  then  probable  would  be  the  fact,  is  the  fact,  for, 
on  a  comparison  of  all  the  cases  which  have  arisen,  it  is  scarcely 
possible  to  find  any  two,  in  which  the  Court  altogether  agrees  with  it- 
self; there  being  scarcely  a  single  circumstance  that  is  considered,  in 
one  case,  as  a  ground  of  inference  in  favour  of  the  intention,  but  it  is 
considered  in  other  cases,  as  against  the  same  inference ;  and  I  can 
find  no  rule  deducible  from  all  that  has  been  said  on  the  subject,  but 
this  (which  appears  to  be  a  rule  supported  by  all  the  cases  taken  to- 
gether) namely,  that  since  it  has  been  lard  down  that  express  words 
are  not  necessary  to  exempt  the  personal  estate,  there  must  be  in  the 
will  that  which  is  sometimes  denominated  '  evident  demonstration,' 
sometimes  '  plain  intention,'  and  '  necessary  implication,'  to  operate 
that  exemption.  Thus  much  can  be  collected  from  the  cases;  butwhen 
it  is  further  inquired  as  to  what  it  is  that  constitutes  this  evident 
demonstration,  plain  intention,  or  necessary  implication,  it  appears 
to  me  that  Lord  Alvanley  is  right  when  he  says,  you  are  not  to  rest 
on  conjecture ;  but  the  mind  of  the  Judge  must  be  convinced  that 

(e)  See  Dixon  v.  Dawson,  2  Sim  &  Stu,  327.  (/)  5  Mad.  69. 


SECT.  III.]  of  the  Personal  Estate.  485 

he  is  deciding  according  to  what  the  testator  intended. (g)  The 
expression  '  necessary  implication,'  is  frequently  applied  to  cases 
between  a  devisee  and  heir-  at  law,  and  yet  there  is  hardly  a  case 
decided  against  an  heir  at  law,  where  the  implication  upon  which  it 
was  so  decided  was  of  absolute  necessity.  .  It  is  but  a  loose  way  of 
defining  this  expression  to  say,  that  the  intention  must  be  so  proba- 
ble that  the  judge  cannot  suppose  the  contrary  ;  and  it  seems  strange 
to  lay  down  as  a  rule,  that  express  words  shall  not  be  required,  but 
yet  that  there  must  be  expressions  tantamount  to  express  words.  I 
take  it  that  this  is  what,  will  be  found  to  be  the  result  of  all  the 
cases  ;  that  the  Judge  is,  in  every  instance,  to  look  at  the  whole  of 
the  will  together,  and  then  ask  Jiimself  whether  he  is  convinced  that 
it  was  the  testator's  intention -to  exempt  his  personal  estate."  "Then, 
on  the  question,  whether  the-  personal  estate  is  discharged  or  not,  I 
apprehend  it  will  be  found  that  the  very  same  circumstances  have, 
in  the  minds  of  different  Judges,  led  to  different  conclusions.  And 
this  is  the  result  to  be  drawn  from  the 'most  diligent  comparision  of 
all  the  cases. "(A) 

3.  The  amount  of  the  personal  estate  in  comparison  with  the 
debts,  &c.  is  not  to  be  considered  in  forming  an  opinion  of  the  tes- 
tator's intention  to  exonerate  it-     Ancient  cases  seem  to  have  sanc- 
tioned an  inquiry  into  that  fund,  in  order  to  deduce  from  the  result 
an  inference  of  intention  to  exempt  it  from  its  legal  obligations  ;(i) 
and  the  debts  exceeding  the  whole  of  the  personalty  appear  to  have 
been  the  foundation  of  the  decree  in  Bamfield  v.  Wyndham,(k)  ex- 
onerating the  personal  estate.     But  an  inquiry  into  the  state  of  that 
fund  is  exploded  by  modern  authorities.     The  testator's  intention  is 
to  be  collected  from  his  will  alone.    In  Lord  Inchiquin  v.  French,(l) 
Lord  Hardwicke  cites,  with  approbation,  the  dictum  of  Lord  Holt, 
that  the  Court  ought  not  to  consider  the  circumstances  of  the  tes- 
tator in  ascertaining  what  was  his  intention.     So  .in  Stephenson  v, 
Heathcote,(m)  Lord  Northington  would  neither  admit  parol  evidence 
of  the  testator's  intention  to.exempt  the  personal  estate,  nor  per- 
mit an  inquiry  into  the   amount  of  that  fund,  for  the  purpose  ef 
showing  directly  or  inferentially  an  intent  to  exempt  it  from  debts, 
&c.     In  Brummel  v.  Prothero,(n)  Lord  Mvanley  declared,  that  in 
endeavouring  to  ascertain  the   testator's  intention,  he  would  not 
look  out  of  the  will  to  the  state  of  the  testator's  property.     And  in 
Booth  v.  Blundell,(o]  Lord  Eldon  considered  it  as  settled  at  law 
and  in  equity,  that  the  circumstances  of  the  personal  estate,  what- 
ever they  might  be,  would  not  alter  or  vary  the   rule,  which  made 
the  personalty  the  primary  fund  for  payment  of  debts,  &c. 

4.  Questions  may  arise,  not  as  to  the  exemption  of  the  personal 
estate  from  debts  and  legacies  generally,  but  whether  a  particular 
legacy  is  or  is  not  payable  out  of  the  real   estate,  in   the   first  in- 
stance, although  the  will  contain  a  general  charge  of  legacies  upon 
that  estate,  which  would  make  it  the  auxiliary,  not  the  primary, 
fund  for  the  payment  of  legacies  generally.     It  is  therefore  pro- 
posed to  consider— 

(p-)3  Ves.  113.  '    (/O  1  Meriv.  219. 

(z)  See  Lord  Talbot's  observations,  Forrest,  208.  (£)  Pre.  Ch.  101. 

(0  Ambl.  40.  1  Cox,  9.    (m)  1  Eden,  39.  43.    (n)  3  Ves.  113.    (o)  1  Meriv.  220. 

VOL.  i.  3  a 


486  Exoneration  [Cn.  XII. 

First.  When  the  real  estate  will  be  the  primary  fund  to  answer 
OIK-  or  more  legacies,  although  as  to  others  it  is  only  liable  in  aid 
of  the  personal  estate. (f>) 

In  order  to  make  the  real  estate  the  primary  fund  for  the  dis- 
duinic  of  particular  legacies,  the  intention  of  testators  is  to  be  col- 
lected in  the  same  manner  as  upon  questions  whether  the  personal 
estate  is  exonerated  from  .legacies  generally.  When  therefore  a 
testator  plainly  shows,  upon  a  sound  interpretation  of  the  whole  of 
his  will,  that  one  or  more  debts  or  legacies  should,  be  paid  out  of 
his  real  estate  in  the  first  instance,  his  personal  estate  will  be  ex- 
empted, notwithstanding  there.be  a  charge  of  legacies  generally 
upon  the  real  property,  by  which  it  would  be  only  an  auxiliary 
fun/1  for  the  discharge  of  those  other  legacies,  in  the  event  of  a  de- 
ficiency of  the  personal  estate.  This  will  appear  from  the  follow- 
ing cases  : 

In  Phipps  v.  \Annesley ,(q)  the  testator  devised  his  real  estate  to 
trustees  for  the  payment  of  aW  his  debts  and  legacies,  with  remain- 
der to  his  nephew,  He  then  gave  a  legacy  of  3000?.  -to  his  only 
daughter  at  the  age  of  eighteen,  or  marriage,  (in  addition  to  12,0002, 
already  charged  by  settlement  upon  the  -real  estate,)  which'  he  di- 
rected his  trustees  to  raise  by  sale  or  mortgage  of  his  lands  ivith  his 
personal  property  ;  but  declared,  "  that  the  money  should  not  be 
raised  till  eighteen  or  marriage,  out  'of  ihe  before  mentioned  estate 
or  land,  that  it  might  not  -be  a- debt  upon  his  personal  estate  ;"  and 
•he  thrice  expressed  in  his  will,  "  that  his  lands  were  devised  to  pay 
his  debts,  and  all  his  legacies,  in  case  his  personal  estate  should 
not  be  sufficient."  Lord  Hardwicke  determined  that  the  real 
estate  was  primarily  liable  to  the  legacy  of  '3000Z. 

His  Lordship  considered,  that  the  intention  to  exempt  the  per- 
sonalty from  the  legacy  of  3000Z.  appeared  in  the  gift  of  that  sum, 
in  addition  to  said  connection  with  the.  12,OOOZ  then  a  subsisting 
charge  on  the  land,(r)  which  circumstance,  coupled  with  the  devise 
of  the  less  sum  out  of  the  real  estate,  and  the  declaration  that  it 
should  not  be  a  debt  upon  the  personalty,  was  conviction  to  his  Lord- 
ship's mind,  that  the  real  property  was  meant  to  be  primarily  liable 
to  this  legacy;  notwithstanding  it  was  only  the  auxiliary  fund  for 
the  payment  of  debts  and  the.  other  legacies. 

It  seems  to  be  a  necessary  consequence,  that  if  a  subsisting 
charge  on  the  real  estate,  augmented  by  will,  shall  have  the  effect 
of  attracting  to  it  the  testamentary  addition,  so  as  to  make  it  prima- 
rily payable  out  of  the  land,  the  principle  of  the  decision  must  pro- 
duce a  similar  determination  where  the  charge  so  subsisting  is 
revocable,  with  a .  power  to  limit  new  uses  of  the  estate  ;  and  revo- 
cation of  the  instrument  creating  the  charge  is  made  by  a  will,  dis- 
posing of  the  property,  but  expressed  to  be  subject  to  payment  of 
the  money  mentioned  in  the  charge  ;  for  in  such  a  case  it  is  ob- 
vious that  the  lands  primarily  liable  to  raise  the  sum  were,  notwith- 
standing the  revocation  of  the  old  uses,  intended  by  the  testator  to 
continue  the  primary  fund  for  its  discharge.  This  was  the  ground 
of  Lord  Kenyan's  decree  in  the  following  case  : 

(/O  Vide  sect.  1.  p.  446.  (g}  2  Atk.  57. 

(r)  Such  also  was  the  case  of  Ward  v.  Lord  Dudley,  determined  by  Lord  Thur- 
lo-tv,  2  Bro.  C.  C.-316  1  Cox.  438. 


SECT.  III.]  of  the  Personal  Estate.  487 

The  Earl  of  Bath  being  entitled  to  the  remainder  in  fee  of  real 
property,  expectant  upon  an  estate  tail  in  A.  conveyed  by  proper 
deeds  that  remainder  to  trustees,  to  the  use  of  himself  for  life, 
remainder  to  the  trustees  for  a  term  of  ninety-nine  years,  in  trust  to 
raise  so  much  money  for  such  persons  as  he  should  appoint  by  deed 
or  will,  with  liberty  to  revoke  the  old  and  appoint  new  uses.  The 
Earl,  in  execution  of  his  power,  made  an  appointment  by  deed, 
directing  his  trustees  to  raise  20001.  within  a  year  after  the  deter- 
mination of  the  estate  tail  in  «#.  and  the  term  should  commence  in 
possession,  and  to  pay  that  sum  to  B.  .  The  Earl  covenanted  to  pay 
the  money  to  B.  within  the  same  period  after  the  remainder  came 
to  him,  in  the  event  of  .#.'«  estate  tail  determining  during  his  (the 
Earl's)  life  :  or,  if  that  contingency  should  not  happen,  and  the 
Earl  revoked  the  "uses  of  the  first  deed,  so  that  the  trustees  could 
not  raise  the  20001.  then  he  covenanted  that  his  heirs,  &c.  should 
pay  the  money  to  B.  within  a  year  after  the  expiration  of  the  estate 
tail,  provided  if  Ji.  barred  the" remainder,  the  2000/:  was  not  to  be 
.  paid.  The  Earl  totally  revoked  the  uses  of  the  first  deed  by  his 
will,  and  disposed  of  the  real  property,  "-subject  to  the  payment  of 
the  aforesaid  sum  of  20001.  charged  thereon  by  him  for  the  benefit 
of  5."  .  Lord  Kenyon,  M.  R.  determined,  upon  the  reasoning  before 
mentioned,  that  the  money  was  to  be  paid  out  of  the  real  estate. (s) 

In  Spunvay  v.  Glynn.(i)  Mr.  Coffin  after  chaining  particular  real 
estates  with  the  payment  of  debts,  funeral,' and  testamentary  expen- 
ses, and  the  legacies  after  bequeathed,  or  which  he  should  give  by 
codicil,  devised  all  his  real  estates  (except  his  Portledge  estate,  which 
he  afterwards  meant  to  dispose  of)  to  Messrs.  Glynn  and  Prideaux, 
equally  in  fee.  He  then  devised  the  Portledge  estate  to  trustees,  in 
trust  by  sale  or  mortgage,  or  out  of  the  rents  and  profits,  to  raise, 
with  all  convenient  speed  after  his  death,  4001.  and  pay  the  money 
to  Mr.  Spurway,  and  after  such  payment  -in  trust  for  Mr.  Pine  for 
life,  with  remainders  over.  The  testator  then' gave  some  legacies 
and  annuities,  and  directed  the  residue  of  his  personal  estate  not  be- 
fore specifically  bequeathed,  and  after  payment  of  his  said  legacies, 
to  be  converted  into  money,  and  applied  by  his  executors  in  discharge 
of  his  debts,  funeral,  and  testamentary  expenses,  and  the  legacies 
thereby  given  or  which  he  intended  to  give  by  codicil,  in  exoneration 
of  his  real  estates  charged  with  them ;  and  if,  after  such  payments, 
there  remained  a  residue,  he  gave  it  to  Messrs.  Glynn  and  Pri- 
deaux, whom  he  appointed  executors.  Sir  W.  Grant,  M.  R.  was  of 
opinion,  that  the  Portledge  estate  was  primarily,  and  solely,  liable 
to  the  legacy  of '4001. 

His  Honour  said,  that  it  was  the  testator's  intention. to  charge  the 
above  sum  exclusively  upon  the  Portledge  estate,  in  exemption  of 
the  personalty  j  for  there- was  no  direct  bequest  of  the  money  to  the 
legatee,  but  it  was  ordered  to  be  raised  out  of  the  Portledge  estate, 
and  paid  to  him  ;•  and  that  the  general  words  at  the  close  of  the  will 
clearly  related  to  the  first  charge,  and  were  intended  to  exonerate 
the  estates  there  referred  to,  in  which  the  Portledge  estate  was  ex- 
pressly excepted. 

(,v)   llrilson  v.  Earl  of  Darlington,  1  Cox.  172. 
(/)  9  Ves.  483.  and  see  sect.  J.  p.  446. 


488      .  Exoneration  [Cn.  XII. 

Sir  William  Grant,  M.  R.  made  a  similar  decree  in  Hancox  v. 
Jibbey,(v)  under  the  following  circumstances : 

In  that  case,  Mr.  Hancox,  having  a  wife  and  two  daughters,  de- 
vised his  real  estates  to  trustees,  to  sell  a  part  with  all  convenient 
dispatch  after  his  death,  and  to  discharge  out  of  the  money  a  mort- 
gage debt  affecting  one  of  them,  and  to  raise  2000Z.  for  his  daugh- 
ters, payable  at  twenty -one  or  marriage;  with  a  direction  to  his 
trustees,  that  so  soon  as  the  legacy  was  raised,  it  should  be  invested 
in  stock,  and  the  dividends  applied  for  the  maintenance  of  his  daugh- 
ters. And  after  the  sale,  and  the  application  of  the  purchase  mo- 
ney, for  the  purposes  aforesaid,  he  devised  the  residue  of  the  said 
estates  to  his  wife  for  life,- with  remainder  to  his  daughters  as  tenants 
in  common  in  fee.  The  testator  gave  some  legacies,  and  bequeath- 
ed his  residuary  personal  estate,  after  payment  of  all  his  debts,  lega- 
cies, and  funeral  expenses,  to  his  wife  absolutely.  Sir  W.  Grant 
decided,  that  .the  personal  fund  was  exonerated  from  its  original 
liability  to  discharge  the  mortgage  debt,  and  the  legacy  of  2000Z. 

With  respect  to  the  legacy,  the  reasons  for  his  Honour's  decree 
appear  to  have  been  these-:  1st,  That  the  2000/.-was  not  bequeathed 
as  a  gross  sum,  but  as  so  much  of  the  produce  of  the  real  estates  ;  a 
devise,  which  entitled  the  .daughters  to  tke  money  in  no  other  shape 
than  as  part  of  the  real  proceeds  ;(M)  and  2dly,  that  the  testator 
showed,  his  intention,  that  the  money  should  be  raised  solely  out  of 
the  land;  from  the  several. directions  which  he  gave  as  to  the  pay- 
ment of  the  interest  and  the  capital,  none  of  which  were  applicable 
to  a  sum  of  20003!.  generally^  but  all  to  the  sum  of-2000/.  with  the 
circumstances  previously  stated,  viz.  a  sum  arising  in  consequence 
of  the  sale  of  real  estate,  and  produced  by  that  sale. 

So  in  Gittins  v.  Steele,(x)  where  Lord  Eldon  reversed  the  decree 
of  Sir  John  Leach,  V.  C. ;  the  case  was,  that  Mr.  Evans,  after  di- 
recting his  executors  to  pay  his  debts,  funeral  expenses,  and  the  costs 
of  proving  his  will,  bequeathed  7000Z.  equally  among  his  cousins, 
and  charged  his  real  property  with  the  payment  of  that  .sum.  He 
then  gave  to  persons,  whom  he  appointed  executors,  two  specific 
sums  of  8000Z.  and  2000J.  three  per  cent,  stock,  then  standing  in  his 
name,  upon  certain  trusts,  and  after  giving  several  legacies  out  of 
his  residuary  estate,  he  devised  t.o  the  same  persons,  as  trustees,  all 
his  real  property  to  sell,  and  out  of  the  proceeds  and  intermediate 
rents  to  pay  his  debts,  funeral  expenses,  the  7000Z.  and  the  expenses 
of  the  sale.  He  then  bequeathed  all  his  money,  securities  for  mo- 
ney, stock  in  trade,  and  the  residue  of  his  personal  estate  (not  before 
disposed  of )  to  his  executors  and  trustees,  in  trust,  to  sell  his  stock 
in  trade,  &c.  and  out  of  the  produce,  and  his  other  money  and  secu- 
rities, to  pay  the  said  legacies  of  8000Z.  and  2000Z.  stock,  and  the 
several  other  legacies  before  given,  except  that  of  7000Z.  which  was 
to  be  considered  as  a  charge  upon,  and  paid  out  of  the  proceeds  from 
the  sale  of  the  real  estate.  The  testator  then  directed  the  residue 
of  the  money  produced  from  the  sale  of  his  real  property,  stock  in 
trade,  and  personal  estate,  and  the  residue  of  his  other  personalty,  to 
be  invested  on  securities  for  a  limited  period ;  and  after  providing, 
out  of  the  interest,  for  the  payment  of  certain  weekly  sums,  he  gave 

(t;)  11  Ves.  179.     (w)  See  Walker  v.  Pink,  cited  1  Cox,  5.     (or)  1  Swaiist,  24. 


SECT.  III.]  of  the  Personal  Estate.  489 

the  surplus  interest,  and  also  the  capital  after  the  period  before  alluded 
to,  for  the  benefit  of  the  persons,  who  should  be  entitled  to  the  said 
three  legacies  of  7000Z.,  8000Z.,  and  2QOOJ.  Lord  Eldon  determined, 
that  the  real  estate  was  the  primary  and  sole  fund  for  discharging 
the  legacy  of  7000J.  and  that  the  produce  of  it  being  insufficient  to 
pay  the  whole  sum,  the  legatee  was  not  entitled  to  resort  to  the  ge- 
neral personal  assets  to  supply  the  deficiency. 

The  last  is  a  stronger  case  in  favour  of  exempting  the  personal 
estate  from  the  particular  legacy  by  negative  words,  than  Phipps  v. 
Jlnnesley,  before  stated. (u)  In  addition  to  the  whole  frame  of  the 
will,  manifesting  the  testator's  meaning  that,  the  bequest  should  only 
take  effect  out  of  the  proceeds  from  a  sale  of  his  real  estates,  he  ex- 
pressly exempts  his  personal  property  from  the  payment,  declaring 
that  the  legacy  was  to  be  considered  as  a  charge  upon  and  to  be  paid 
.  out  of  those  real  proceeds.  After  such  an  explicit  declaration,  it 
wquld  seem,  that  had  other  passages  in  the  will  raised  a  doubt  as  to 
the  intention,  it  pugjbt  not  to  have  been  regarded  ;  since,  according 
to  Lord  Hardwicke  in  Inchiquin  v.  French,(x]  where  there  are  ex- 
press words,  they  cannot  be  over-ruled  by  implication. 

We  shall  proceed  to  consider — 

SECONDLY. — When  the  personal  estate  will  be  exempted  from 
debts,  secured  by  mortgages  upon  the  real  property. 

It  is  a  general  rule,  that  the  heir  or  devisee  of  an  estate  liable  to 
a  mortgage  debt  contracted  by  the  testator,  is  entitled  to  have  the 
land  exonerated  by  the  general  personal  assets  ;(y)  because  the  mo- 
ney, being  a  debt .  due  from  the  testator,  is  like  his  other  debts,  pri- 
marily payable  .out  of  the  personal  estate;  and  it  is  immaterial, 
whether  lie  convenanted  to  pay  the  money  or  not,  it  being  in  either 
case  equally  his  debt.(2)  But  these  two  circumstances  must  concur 
to  entitle  the  real  property  to  exoneration,  viz.  the  debt  must  be  of 
the  testator's  contracting,  except  under  special  circumstances ;  and 
it  must  not  appear  that  he  intended  to  pass  the  estate  cum  onere. 

The  principal  authorities,  where  the  personal  estate  was  adjudged 
to  be  primarily  liable  to  discharge  the  real  from  incumbrances  with 
which  it  was  charged,  will  be  found -in  note. (a) 

And  .although  the  testator,  devise  his  real  estates  charged  with,  or 
to  be  sold  to  pay,  all  his  -debts,  yetr  as  that  circumstance  alone  will 
not  (as  we  have  seen)  exempt  the.  personal  assets  from  the  obliga- 
tion to  discharge  those  demands,  the  personal  estate  will,  in  the  first 
instance,  be  applicable  to  pay  a  debt  by  mortgage,  as  one  of  them.  (6) 

So  also,  if  the  real  estate  be  devised  to  a  person,  expressly  subject 
to  mortgages  affecting  it';  still  the  personalty  will  not  be  exempted 
from  payment  of  them,  because  the  testator's  intention,  by  those  ex- 
pressions, to  cast  the  burthen  of  those  debts  upon  the  devisee,  so  as 
to  deprive  him  of  his  equity  to  resort  to  the  personal  estate  for  ex- 

(M)  Ante,  p.  486.     2  Atk.  57.  (a:)  Ante,  p.  465. 

(y)  11  Ves.  186.  (.z)  1  Ves.  sen.  99. 

(a)  Meynellv..  Howard,  Pre.  Ch.  61?    HoiOelv.  Price,  1  P.  Will.  291.  Pre.  Ch. 
423.  477.  S.  C.     Cofie  v.  Cdfie,  2  Salk.  449.     Bateman  v.  Bateman,  1  Atk.  421. 
ed.  by  Sanders.    Lanoy  v.  Athol,  2  Atk.  444. .  Lord  Portsmouth  v.  Lady  Suffolk, 
1  Ves.  sen.  31."     King  \.  King,  3  P.  Will.  358. 

(b)  11  Ves.  186.  and  see  Hale  v.  Cojc,  infra<  as  to  the  mortgage  of  the  houses  in 
Pifier  How.   Also  Laivson  v.  Hudson,  1  Bro.  C.  C.  58.    3  Bro.  Parl.  Ca,  4?4. 


Exoneration  [Cn.  XII. 

oneration,  is  not  clear  and  unequivocal.  He  might  mean  nothing 
more  than  to  pass  the  estate,  as  the  law  would  have  done,  in  the  ab- 
sence of  the  explanatory  expressions,  i.  e.  subject  to  the  mortgages; 
in  which  case,  the  right  of  the  'devisee  against  the  personal,  estate 
would  remain  unaffected. (c) 

But  where  a  testator's  intention  is  plainly  shown  to  make  the  de- 
vised estate  the  primary  fund  for  payment  of  incumbrances  affect- 
ing it,  the  devisee  'must  take  it  cum  onere;  arid  the  personal  estate 
will  be  discharged.  This  may  happen,  when  a  testator  expressly 
devises  a  portion  of  the  proceeds  from  a  sale  of  his  real  estate  to  be 
applied  in  discharge  of  a  particular  incumbrance  charged  upon  a 
part  of  it ;  for  he  could  have  no  other  motive  in  giving  such  a  direc- 
tion, than  that  the  money  to  be  raised  by  means  of  the  real  estate 
should  be  first  applied  in  payment  of  the  particular  debt. (d) 

The  personal  estate  would  be  also  exonerated,  when  the  real  is 
not  given  to  the  devisee  till  after  a  sale,  and  the  proceeds  have  been 
applied  in  discharging  incumbrapces  upon  the  lands  or  some  of 
them  ;  because,  what  is  devised,,  is  not  the  whole,  but  so  much  of  the 
real  property  or  produce  as  remained,  after  those  purposes  have  been 
answered,  (e)  To  give  him,  therefore,  the  whole  of  the  estate,  by 
discharging  the  mortgages  out  of  the  personalty,  would  be  contrary 
to  the  terms  of  the  will. 

Thus  in  Hale  v.  Cox,(f)  the  testator  had  mortgaged  one  estate 
called  Milstones  to  a  Mr.  Robins,  for  3001.,  and  some  houses  in 
Piper  Row,  Wolverhampton,  to  another  person.  Under  these  cir- 
cumstances, the  testator  directed. the  latter  mortgage,  and  all  his 
debts  and  funeral  expenses  to  be  paid  out  of  his  personal  estate,  be- 
queathing to  trustees  the  residue  of  that  fund  for  the  benefit  of  two 
persons,  who  died  before  him.  All' his  other  real  estates,  (including 
Milstones  in  mortgage  to  Robins')  he  devised  to  the  same  trustees, 
in  trust  to  sell  such  of  them  as  should  be  in  mortgage  at  his  death, 
and  after  payment  of  principal  and  interest,  he  ordered  the  surplus 
to  be  invested  upon  securities,  for  the  benefit  of  his  daughter  for  life, 
with  remainder  to  her  children.  The  trustees  were  authorized,  in 
their  discretion,  to  continue  the-money  on  the  mortgage,  or  borrow 
money  on  a  transfer  of  the  security.  Although  Lord  Thurlow  de- 
cided the  Case  against  the  exemption  of  the-  personal  estate,  in  con- 
sequence of  the  death  of  the  residuary  legatees  during  the  testator's- 
life,  yet  he  was  of  opinion,  that  if-such  accident  had  not  happened, 
the  estate  in  mortgage  to  Robi/is  must  have  been  the  primary  fund 
for  discharging  that -debt,  there  .being-nd  beneficial  devise  of  its  pro- 
duce until  after  that  event.  But  as'to  the  other  mortgage,  he  con- 
sidered there  was  not  sufficient  evidence  of  intention, 'to  -exempt 
the  personal  fund  from  its  natural  obligation  to  exonerate  the 
pledged  estate. 

The  above  opinion  of  Lord  Thurlow  in  regard  to  the  primary 
liability  of  the  real  estate  to  discharge  the  mortgage,  debt  due  to 
Robins,  was  afterwards  confirmed  by  Sir  W.  Grant,  M.  R.  in  the 

(c)  So  stated  in  argument,  and  admitted  by  Sir  W.  Grant,  11  Ves.  181.  188,  and 
see  8  Ves.  306.  _ 

(rf)  11  Ves.  1'86.  and  see  Watson  v.  Ihickwood^ante^.  472.  in  exception,  under 
the  particular  terms  and  construction  of  the  will,  9' Ves.  455. 

(/)  11  Ves.  187.'  .  (  /•)  3  Bro.  C.  C.  322. 


SECT.  III.]  of  the  Personal  Estate.  491 

case  of  Hancox  v.  Jlbbey,  before  in  part  stated,(g)  who  decreed  that 
the  devise  to  trustees  of  the  real  estates,  in  trust,  out  of  the  proceeds 
from  a  sale  of  part  of  them,  to  pay  a  mortgage  debt  secured  upon 
the  testator's  lands  at  Hanwell,  with  a  disposition  of.the  r.ents,  &c. 
of  the  unsold  estates  after  the  sale,  and  the  application  of  the  pur- 
chase money  for  the  purposes  therein  mentioned  (one  of  which  was 
to  discharge  the  debt  by  mortgage,)  constituted  the  real  estate  the 
original  fund  for  the  payment  of  that  debt. (h) 

When  indeed  a  testator  has  in  words  exempted  his  personal  estate 
from  particular  debts,  they  cannot  be  controlled  by  implication. (i) 
Suppose  then  a  testator  to  devise  part  of  his  real  property  to  trustees 
to  sell,  and  with  the  proceeds  to  discharge  a  mortgage  upon  another 
estate,  and  particular. debts  mentioned  in  a  schedule  to  his  will;  and 
then  to  settle  the  remainder  of  his  lands,  including  those  subject  to 
the  mortgage,  Upon  his  wife 'and  family  ;  at  the  saine  time  bequeath- 
ing, to  his  wife,  all  his  personal  estate  fully  exonerated  from  his  debts 
therein,  and  in  the  schedule  enumerated,  and  from  his  debts  and  fune- 
ral expenses.  If  in  the  case  supposed,  the  trust  estate  be  insufficient 
to  satisfy  those  demands,  the  settled  estates,  must  be  applied  in  ex- 
oneration of  the  personalty ;  because^  whatever  may  be  the.  presump- 
tion of  a  contrary  intention,  it  .cannot- stand  in  competition,  with  the 
express  exemption  of  the  personal  property. (&) 

The  heir  or  devisee  of  a  mortgaged  estate  will  also  be  precluded 
from  resorting  to.  the  pexsoal  assets  of  the  ancestor  or  testator  for 
exoneration,  when  the  debt  is  ^npt  contracted  by  such  ancestor  or 
testator;  but-  the  estate  will  come  into, his  hands  with  the  charge 
upon  it.  '  This  is  exemplified  in  the  recent  case  of  Scott  v.  Beecher 
and  wife.(Z)  In  that  case../0/m  Tyson,  having  surrendered  his  copy- 
hold estate  to  Richard  Mills  and  his  heirs,  by  way. of  mortgage,  for 
securing  1000Z.  by  his  will  devised  all  his  estate  and  effects  to  his 
wife  Elizabeth  Tyson,  and  in  particular  his  copyhold  estate,  and  ap- 
pointed her  executrix.  After  the  testator's  death  in  IS1 4,  Elizabeth 
Tyson  proved  the  will,  was  admitted  to  the  copyhold  subject  to  the 
mortgage,  and  in  1816  died  without  issue,  and  intestate,  leaving  her 
brother,  the  plaintiff,  her  heir  at  law,  according  to  the  custom; 
Letters  of  administration  were  granted  to  the  plaintiff,  and  to  the 
wife  of.the  defendant.  Upon,  the  question  between  the  heir  at  law 
and  administrator  of  Elizabeth  Tyson,  whether  the  former  should 
take  the  estate  subject  to  the  mortgage,  or  have  it  discharged  out  of 
the  personal  estate  of  Elizabeth  Tyson,  the  Vice  Chancellor  re- 
marked, that  Elizabeth  Tyson  was-devisee  of  the  copyhold  estate, 
and  was  also  residuary  legatee  and  executrix  of  the  mortgagor.  If 
she  had  thought  fit,  she  might  have  paid  off  the  mortgage  out  of  the 
personal  estate  of  her  husband ;  for  it  was'  admitted  that  she  pos- 
sessed assets  sufficient  to  pay  all  the  debts  including  the  mortgage, 
and  it  might  therefore  be  said  that  she  elected  to  continue  the  mort- 
gage as  a  charge  on  her  real  estate.  But  his  Honour  apprehended 
that  that  was  not  a  case,  in  which  a  personal  representative  was 
bound  to  make  out  any  such  fact  of  election.  By  the  gift  to  her  as 
residuary  legatee,  the  personal  estate  of  James  Tyson  became  her 

Ante,  p.  488.  (A) 'See  11  Ves.  179.  186.  (i)  See  ante,  p.  465. 

See  the  case  of  Morrow  v.  Bush,  \  fox,  185.  (/)  5  Madd.  96. 


492  Exoneration  [Cn.  XII. 

personal  estate ;  but  the  mortgage  debt  of  James  Tyson  was  not 
her  debt,  and  her  heir,  therefore,  had  no  equity  to  pay  off  the  mort- 
gage out  of  her  personal  estate.  The  bill  was  accordingly  dismissed 
with  costs. 

The  same  rule  holds  although  there  be  a  general  charge  of  debts 
upon  all  the  testator's  real  property,  because  such  an  incumbrance 
is  not  considered  to  be  his  debt,  payable  primarily  out  of  his  per- 
sonal estate.  And  if  it  be  not  his  debt  originally,  it  will  not,  in 
general,  acquire  that  character  by  his  covenant  to  pay  the  money, 
so  as  to  make  his  personal  estate  the  primary  fund  for  satisfaction 
of  the  demand;  for  such  a  covenant  is  merely  auxiliary,  an  indis- 
pensible  accident  to  subsequent  transactions,  consequent  upon  the 
creation  of  the  original  debt.  Suppose  then  a  testator  to  have  ac- 
quired an  estate,  either  as  heir,  devisee,  or  purchaser,  subject  to  a 
mortgage;  and  upon  a  transfer  of  the  security  to  have  covenanted 
to  pay  the  debt;  in  neither  instance  would  his  personal  assets  be 
answerable,  in  the  first  place,  to  satisfy  the  demand,  they  could 
only  be  resorted  to  in  aid  of  the  charged  estate.  .This  may  be  con- 
sidered as  the  general  rule,  established  by  the  cases  referred  to  in 
note;(m)  a  rule,  which  will  not  be  departed  from,  although  the  tes- 
tator may  have  pledged  his  own  estate  as  an  ulterior  security  for 
the  same,  debt  ;(n)  since  the  debt  remains  unaltered,  and  the  secu- 
rity is  merely  collateral  to  it. 

And  upon  the  same  principle,  if  the  testator's  heir  or  devisee 
make  an  additional  mortgage  of  the  estate  to  pay  the  debts  of  the 
testator,  and  the  money  is  so  applied,  or  if  he  enter  into  personal 
obligations  to  individuals  having  claims  or  liens  upon  the  land,  such 
mortgage  or  obligations  will-not,  as  between  the  real  and  personal 
representatives  of  the  heir  or  devisee,  entitle  the  former  to  call  for 
exoneration  out  of.  the  personal  estate :.  for  that  fund  received  no 
accession  or  benefit  from  those  transactions,  which,  having  been 
entered  into  in  respect  of  the  real  estate,  it  seems  but  reasonable, 
that  such  estate  should  be  the  primary  fund  liable  to  answer  them. 

Accordingly,  if  an  estate  be  devised  to -trustees  to  sell  to  pay 
debts  and  legacies,  and,  subject  thereto,  in  trust  for  B.,  should  B. 
give  a  bond,  or  other  security,  to  a  legatee  or  creditor'for  payment 
of  his  demand  upon  the.  lands  and  die;  those  lands  will* be  the  pri- 
mary fund' for  discharging  the  obligation. (o) 

The  principle,  which  governs  cases  of  this  description  is  well  ex- 
pressed by  Sir  W.  Grant,  in  his  comments  upon  Billinghurst  v. 
Walker.(p)  There  a  term  of  ninety-nine  years  was  created  to  se- 

(m)  1st.  Where  the  covenant  was  entered  into  upon  a  transfer  of  the  security, 
Bagot  v.  Oughton,  1  P.  Will.  347.  Evelyn  v.  Evelyn,  2  P.  Will.  663.  Shafto  v. 
ShaftOy  2  P.  Will.  664'.  ed.  by  Cox,,  in  notes.  1  Cox,  207.  S.  C.  3  Ves.  131. 
Perkyns  v.  Bayntun,  2  P.  Will.  664.  ed.  by  Cox,  in  notes. 

2nd.  Where  the  testator  purchased  the  equity  of  redemption,  and  covenanted  to 
pay  the  money  ;  Forrester  v.  Leigh,  Ambl.  171.  173.  2  P.  Will.  664.  ed.  by  Cox, 
in  notes.  Ancaster  v.  Mayer,  1  Bro.  C.  C.  454.  464.  Tweddell  v.  Tweddell,  2 
Bro.  C.  C.  101.  152.  Commented  upon  by  Sir  W.  Grant,  14  Ves.  424. 

(n)  1  Bro.  C.  C.  464. 

(o)  Basset  v.  Percrval,  2  P.  Will.  665.  ed.  by  Cox,  in  notes.  Earl  of  Tanker- 
•ville  v.  Faivcet,  1  Cox,  237.  2  Bro.  C.  C.  57.  5.  C,  Hamilton  v.  Worley,  2  Ves. 
jun.  62.  Mattheson  v  Hardivicke,  2  P,  Will.  665.  in  notes.  5th  ed.  by  Cox. 

(/z)  2  Bro.  C.  C.  604. 


SECT.  III.]  of  the  Personal  Estate.  493 

cure  to  Martha  Vernon,  22001.  upon  premises  hqld  for  lives.  There 
being  a  difficulty  about  the  renewal  of  the  lease,  it  was  appre- 
hended that  Martha  would  remain  altogether  without  a  security  if 
the  lease  expired.  A  bond,  therefore,  was  given  by  George  Wood- 
rqffe,  the  devisee  of  the  estate,  subject  to  the  charge,  for  the  money ; 
which,  if  that  apprehension  proved  well  founded,  would  be  the  only 
security  in  existence  for  the  debt.  The  lease  was  afterwards  re- 
newed, and  the  charge  attached  upon  :  Lord  Thurlow  holding,  that 
the  bond  did  not  make  the  money  charged  upon  the  estate  the  per- 
sonal debt  of  the  obligor. 

Upon  the  last  case,  Sir  W.  Grant  made  the  following  remarks  : 
It  is  clear  from  the  res  gesta,  that  all,  which  George  Woodr.qffe 
meant,  was,  to  substitute  his  bond  in  the  room  of  the  leasehold  secu- 
rity ;  which,  it  was  supposed,  Martha  was  about  to  lose,  but  not  to 
take  upon  himself,  absolutely,  and  at  all  events,  the  debt,  as  a  per- 
sonal debt  of  his  own.  He  had  no  intention  absolutely  to  exonerate 
the  estate  ;  for  he  never  would  have  given  the  bond  except  for  the 
particular  purpose.  It  was  therefore  inequitable,  and  unconscien- 
tious  to  say,  that  although  the  bond  was  given  only  for  that  purpose, 
it  should  be  held  to  attach  solely  upon  the  personal  estate  of  George 
Woodroffe.  The  bona  fides  of  the  transaction  required  that,  in  the 
event  which  happened,  the  lease  should  be  still  chargeable,  and  not 
the  personal  estate  of  George  Woodroffe."(q] 

So  also,  if  the  incumbered  estate  be  further  mortgaged  by  the  heir 
or  devisee  for  his  own  debt ;  the  consequence  must  be,  from  the 
principle  we  have  been  discussing,  that  so  much  of  the  debt,  as  was 
contracted  beneficially  for  himself,  will  be  first  payable  out  of  his 
personal  estate,  and  the  remainder  out  of  the  descended  or  devised 
estate. (r) 

And  when  the  personalty  has  been  erroneously  applied  as  the  pri- 
mary fund,  in  exoneration  of  the  real,  the  individuals  entitled  to  the 
personal  property  will  have  a  right  to  be  reimbursed  out  of  the  real 
estate,  (s) 

5.  The  rule  however  making  the  real  estate  the  primary  fund  for 
payment  of  an  incumbrance  affecting  it,  which  was  not  contracted 
by  the  owner  of  the  property,  is  not  so  inflexible  as  to  admit  of  no 
exception,  when  the  transaction  imports  his  intention  to  adopt  the 
debt  as  his  own,  and  that  he  meant  the  vendor  to  be  entirely  released 
from  it.  This  may  happen,  where  upon  the  sale  of  an  estate  sub- 
jected to  a  mortgage,  the  purchaser  not  only  contracts  with  the  ven- 
dor for  the  equity  of  redemption,  but  also  with,  the  mortgagee  for 
the  legal  interest  upon  redemption,  covenanting  at  the  same  time 
to  pay  the  money,  and  the  mortgagee  releases  the  vendor  from  the 
debt.  In  such  a  case,  the  intention  of  all  necessary  parties  for 
changing  the  nature  of  the  debt  is  apparent.  It  therefore  becomes 
the  personal  obligation  of  the  purchaser,  and,  as  such,  his  personal 
assets  are  applicable  to  discharge  it  in  exoneration  of  the  real  estate. 
Upon  this  principle,  the  following  cases  were  determined. 

(9)  UVes.  425. 

(r)  Lemanv.  Newnham,  I  Ves.  sen.  51.  and  for  the  decree,  see  Belt's  Supp.  40. 

(a)  Lawson  v.  Hudson,  1  Bro.  C.  C.  58.     3  Bro.  Pad.  Ca.  424.  8vo.  ed. 

VOL.  i.  3  R 


494  Exoneration  [Cn.  XII. 

In  Woods  v.  Huntingford,(t)  Mr.  and  Mrs.  Huntingford,  being 
tenants  for  life  of  real  estates,  with  remainder  in  fee  to  their  son 
John,  joined  with  him  in  a  mortgage  of  part  of  the  lands  for  a  term 
of  years,  vested  in  a  trustee,  to  one  Carter,  in  consideration  of  200Z. 
which  was  received  by  John,  and  applied  to  his  own  use  ;  and  the 
father  and  son  covenanted  for  payment  of  the  money.  Carter  trans- 
ferred the  mortgage  to  one  Betts,  who  assigned  it  to  Mr.  Wright; 
to  which  transaction  the  mortgagors  were  parties,  the  father  and  son 
covenanting  for  payment  of  the  money,  which  was  increased  by  an 
advance  of  100JL  ;  and  against  the  discharge  of  those  debts  and  in- 
terest the  son  covenanted  to  indemnify  the  life  estates  of  his  father 
and  mother.  After  this,  the  interest  having  become  in  arrear,  and 
continuing  unpaid  for  a  considerable  time,  the  son  was  desirous  of 
being  discharged  from  his  liability  to  pay  the  debt  and  the  interest 
in  arrear  which,  with  the  interest  to  accrue  before  his  remainder  in 
fee  would,  in  probability  fall  into  possession,  might  amount  to  the 
value  of  his  inheritance  in  the  estate ;  he  therefore  contracted  with 
his  father  to  sell  to  him  all  his  interest  in  the  mortgaged  estate,  in 
consideration  of  the  father  taking  upon  himself  the  payment  of  the 
debt,  and  the  interest  as  well  in  arrear,  as  to  accrue,  and  indemnifying 
him  (the  son)  from  such  payment.  The  transaction  was  effectuated  by 
a  proper  deed  in  the  year  1 767,  reciting  those  facts,  and  containing  the 
usual  covenants  by  the  son  for  further  assurance  and  indemnity.  The 
trustee  also  was  directed  to  stand  seised  to  the  use  of  the  father,  who 
covenanted  to  pay  all  the  arrears  of  interest.  The  father  afterwards 
borrowed  of  Wright  a  further  sum  of  40Z.  upon  which  occasion  a 
new  mortgage  was  made  of  the  lands  for  that  sum,  together  with  the 
old  debt  of  300Z.  Under  the  above  circumstances,  Lord  Mvanley 
was  of  opinion,  that  the  father  adopted  the  debt  of  the  son  as  his 
own,  which  entitled  the  father's  heir  to  exoneration  of  the  pledged 
estate  out  of  personal  assets  of  the  father. 

It  is  observable  in  the  last  case,  that  the  transaction  in  1767 
clearly  showed  that,  as  between  father  and  son,  the  former  meant  to 
substitute  himself  in  the  place  of  the  latter,  in  relation  to  the  mort- 
gagee. And  with  respect  to  the  mortgagee,  he  also  released  the 
son  from  his  liability  by  accepting  the  new  mortgage  for  the  old 
debt.(w)  Besides,  the  payment  of  the  debt  and  interest  was  the  con- 
sideration given  by  the  father  for  the  purchase  of  his  son's  remainder 
in  fee,  a  circumstance  of  itself  probably  sufficient  to  make  the  mort- 
gage the  personal  debt  of  the  purchaser,  and,  as  such,  primarily  an- 
swerable out  of  his  personal  property. 

That  case  was  followed  by  a  similar  decision  of  Sir  W.  Grant,  in 
the  Earl  of  Oxford  v.  Lady  Rodney.(x)  There  the  late  Earl,  after 
subjecting  his  personal  estate  to  his  own  debts,  &c.  and  appointing 
his  wife  executrix  and  residuary  legatee,  devised  all  his  real  estates 
to  his  wife  for  life,  remainder  to  trustees,  to  apply  the  rents  and  pro- 
fits, after  his  wife's  death,  to  pay  his  debts,  then  the  mortgages  upon 
his  unsettled  estates,  and  next  the  mortgages  upon  those  in  settle- 
ment. And  "  after  payment  of  the  mortgages  in  manner  aforesaid," 

(0  3  Ves.  128.  132. 

(u)  See  Lord  Alvanley's  observations,  5  Ves.  539.  and  2  Eden,  164. 

(x)  14  Ves.  417.  424. 


SECT.  III.]  of  the  Personal  Estate.  495 

in  trust  for  his  heir  at  law.  The  testator  purchased  a  leasehold 
house  in  Harley-street  (then  in  mortgage,)  which  he  specifically  de- 
vised to  his  wife  absolutely ;  and  she,  as  executrix,  exonerated  the 
house  from  the  mortgage  out  of  the  personal  assets ;  which,  it  was 
contended  was  an  improper  application,  and  that  the  messuage  was 
the  primary  fund  for  the  payment ;  a  proposition,  the  correctness  of 
which  depended  upon  the  circumstances  attending  the  sale  and  pur- 
chase of  the  premises.  It  appeared  that  the  mortgagee  was  a  party 
to  the  agreement  of  purchase,  and  to  the  conveyance  to  the  testator. 
It  also  appeared,  from  the  contents  of  the  deed,  that  the  testator 
agreed  to  purchase  the  lessees  interest  in  the  term,  subject  to  the 
mortgage  ;  and  that  the  mortgagee  covenanted  with  the  testator  to 
convey  to  him  the  legal  estate  in  the  term,  on  payment  of  principal 
and  interest  by  instalments  ;  and  to  do  which  the  testator  covenanted 
with  the  mortgagee,  who  agreed  that  he  should  enjoy  the  house  until 
he  failed  in  the  performance  of  his'  covenant^  Under  these  circum- 
stances, Sir  W.  Grant  was  of  opinion,  that  the  testator  had  taken 
upon  h\mse]f  personally  the  mortgage  debt,  which  rendered  his  per- 
sonal assets  primarily  liable  to  the  payment  of  it. 

The  reasons  "that  influenced  the  Court's  opinion,  were  similar  to 
those  upon  which  Lord  Jllvanley  determined  the  preceding  case  of 
Woods  v.  Huntingford,  and  expressed  by  Sir  W.  Grant  as  follows : 
"  Here  is  a  direct  contract  with  the  mortgagee.  As  between  the 
purchaser  and  vendor  of  the  equity  of  redemption,  I  admit  there  is 
nothing  but  a  purchase  of  a  mere  equity,  subject  to  the  mortgage  : 
but  here  the  contract  is  with  two  different  persons  having  different 
interests  in  the  estate ;  one  an  equitable  interest,  the  equity  of  re- 
demption;  the  other,  the  legal  interest,  the  mortgage.  The  pur- 
chaser contracts  with  both  at  the  same  time,  and  both  join  in  the 
conveyance  to  him.  From  the  owner  of  the  equity  of  redemption, 
he  purchases  his  right  to  redeem ;  and  having  done  that,  immediately 
enters  into  another  contract  for  the  purchase  of  the  other  interest 
from  the  mortgagee  ;  taking  a  covenant  from  the  owner  of  the  legal 
estate  to  take  it  from  him  upon  payment  of  the  mortgage  money  at 
particular  periods,  and  in  particular  proportions ;  and  there  are 
covenants  to  pay  that  sum  at  those  periods  and  in  those  proportions, 
and  until  default  of  payment  in  that  mode  for  quiet  enjoyment." 
His  Honour  distinguished  the  case  from  Tiveddell  v.  Tweddell,(y)  in 
the  circumstance  of  the  purchaser  contracting  with  the  mortgagees  : 
and  upon  the  whole,  his  opinion  was  such  as  before  stated. 

It  would  seem,  however,  that  the  purchaser  contracting  with  the 
mortgagee  is  not  indispensibly  necessary  to  his  assumption  of  the 
debt  as  his  own,  so  far  as  relates  to  the  equities  between  his  real  and 
personal  representatives.  That  this  is  reasonable,  appears  from  the 
consideration,  that  both  real  and  personal  estates  are  at  the  absolute 
disposal  of  the  purchaser  ;  and,  since  each  class  of  representatives 
claim  through  him,  both  must  necessarily  succeed  to  his  property 
according  to  the  natures  he  has  stamped  upon  them,  and  the  liabili- 
ties attached  to  each  by  law  in  their  administration  as  assets.  If 
then,  the  transaction  be  between  the  purchaser  and  the  vendor  only, 
and  it  appear  that  the  mortgage  debt  formed  part  of  the  considera- 

(y)  2  Bro.  C.  C.  101.  152. 


496  Exoneration  [Cn.  XII. 

tion  of  purchase,  the  heir  or  devisee  of  the  vendee  will,  as  is  pre- 
sumed, have  the  same  right  to  call  for  payment  of  the  money  out  of 
the  vendee's  personal  assets,  as  of  the  remainder  of  the  price  given 
for  the  estate,  if  due  at  his  decease. 

It  was  accordingly  said,  in  Cope  v.  Cope,(z)  that  if  A.  mortgage 
his  lands  to  B.,  and  afterwards  sell  it  to  C.  for  1000Z.  including  the 
mortgage  money ;  the  purchaser  shall  pay  the  mortgage,  because  he 
has  made  it  a  debt  in  himself. 

And  in  Billinghurst  v.  Walker,(a]  Lord  Thurlmu  expressed  himself 
in  these  words  :%  "  The  mere  purchase  of  an  estate  subject  to  charges, 
as  an  equity  of  redemption,  does  not  make  the  personl  estate  of  the 
purchaser  liable  to  those  demands ;  but  if  a  charge  be  part  of  the 
price,  then  his  personal  estate  is  liable." 

This  doctrine  does  not  rest  merely  on  dicta,  but  it  is  established 
by  a  decision  of  Lord  Hardwicke,  and  a  judgment  of  the  House 
of  Lords. 

In  Parsons  v.  Freeman,(b)  the  case  before  Lord  Hardwicke,  Jl. 
purchased  an  estate  for  90Z.,  which  was  in  mortgage  for  86L  ;  and 
he  covenanted  to  pay  that  sum  to  the  mortgagee,  and  41.  to  the 
vendor.  Lord  Hardwicke,  after  admitting  the  general  rule  before 
stated,  thought,  in  this  particular  case,  notwithstanding  the  cove- 
nant was  with  the  vendor  only,  and  the  vendee's  personal  estate 
therefore  not  liable  in  that  respect  to  the  mortgagee,  the  words 
were  sufficient  to  show  an  intention  in  the  purchaser  to  make  the 
mortgage  his  own  personal  debt. 

The  case  finally  determined  in  the  House  of  Lords  is  the  Earl 
of  Belvedere  v.  Rochfort,(c)  in  which  Robert  Rochfort  agreed  to 
purchase  of  Mr.  Hughes  an  estate  for  900/.,  then  in  mortgage  for 
4501.  The  purchase-deed  stated  that  the  debt  and  interest  were 
to  be  paid  by  the  purchaser  out  of  the  consideration  money  express- 
ed in  the  instrument,  upon  which  was  endorsed  a  receipt  acknow- 
ledging payment  by  the  vendee  in  this  manner :  4501.  in  money  on 
the  perfection  of  the  deed  ;  450Z.  allowed  on  account  of  the  mort- 
gage. A  decree  was  affirmed  by  the  Lords,  which  declared  that, 
under  those  circumstances,  the  purchaser  had  taken  upon  himself  per- 
sonally the  mortgage  debt,  which  ought  therefore  to  be  discharged 
out  of  his  personal  estate. 

Hence  it  may  be  presumed,  that  where  the  purchaser  includes 
the  mortgage  in  the  amount  of  the  price  to  be  given  for  the  estate, 
and  he  covenants  to  discharge  the  mortgage,  and  to  pay  the  differ- 
ence to  the  vendor,  the  mortgage  will  be  considered  the  personal 
debt  of  the  vendee  ;  and  as  such,  his  heir  or  devisee  entitled  to  have 
the  estate  exonerated  out  of  his  personal  assets.  The  case  of 
Tweddell  v.  Tweddell,  before  referred  to,  has  been  considered  of  a 
contrary  import ;  but  the  principle  upon  which  Lord  Thurlow  pro- 
fessed to  decide  that  case,  viz.  on  the  ground  of  the  contract  being 
one  of  indemnity  against  the  mortgage,  and  nothing  more,  is  cor- 
rect and  consistent  with  other  authorities,  and  with  his  own  subse- 
quent declaration  in  Billinghurst  v.  Walker,  provided  the  facts,  to 
which  he  applied  that  principle,  were  sufficient  to  authorize  the  de- 

(z)  2  Salk.  450.  and  see  Ambl.  116.  (a)  2  Bro.  C.  C.  608. 

(£)  2  P.  Will.  664  in  a  note  by  Mr.  Cox.     (c)  5  Bro.  Parl.  Ca.  299.  311.  8vo.  ed. 


SECT.  III.]  of  the  Personal  Estate.  497 

cree,  but  which  may  be  doubted;  for  it  is  difficult  to  conceive, 
when  a  person  (as  in  that  case)  agrees  to  buy  an  estate  in  mort- 
gage, for  a  sum  of  money,  and  he  covenants  with  the  vendor 
to  pay  to  the  mortgagee  what  is  due  to  him,  and  the  remainder  to 
the  owner  of  the  estate,  that  the  purchaser  did  not  take  the  mort- 
gage upon  himself  personally,  as  a  part  of  the  price  to  be  given  for 
the  property. (d)  .That  such  circumstances  are  sufficient  evidence 
of  the  purchaser's  intention  to  adopt  the  debt  as  his  own,  Lord 
Hardwicke  determined  in  the  before-stated  case  of  Parsons  v.  Free- 
man ;  and  although  Lord  rflvanley,  in  Butler  v.  Butler,(e)  (a  case  in 
which  the  last  was  not  cited,)  thought  himself  bound  by,  and  there- 
fore reluctantly  followed  the  authority  of  Tweddell  v.  Tweddell, 
yet,  when  a  similar  case  shall  occur,  it  may  be  presumed  that  the 
vendee  will  be  considered,  in  conformity  with  Lord  Hardwicke's 
decision,  as  having  taken  upon  himself  the  mortgage  debt,  as  part 
of  the  price  to  be  paid  for  the  purchase,  which,  will  entitle  his 
heir  or  devisee  to  have  it  discharged  out  of  the  personal  estate. 

In  regard  to  the  sufficiency  of  transactions  by  an  heir  at  law, 
who  succeeds  to  an  estate  in  mortgage,  to  make  that  incumbrance 
his  own  personal  debt,  it  was  stated  as  a  clear  point  by  Lord  Nor- 
thington  in  Donisthorpe  v.  Porter, (f]  "  that,  where  an  heir  inherits 
a  mortgaged  estate,  he  makes  the  debt  his  own  by  covenant  and 
bond,  and  a  new  equity  of  redemption  ;  his  personal  estate  (said 
his  Lordship)  is  therefore  liable  to  pay  ;  he  has  by  his  own  act 
willed  it  so."(g")  . 

After  considering  wh'ere  the  general  personal  estate  is  and  is  not 
exempted  from  the  payment  of  all  or  particular  debts  and  legacies, 
it  will  be  proper  in  the  next  place  to  notice — 

6.  When  part  of  the  personal  estate  will  be  effectually  appro- 
priated for  the  discharge  of  legacies,  in  exoneration  of  what 
remains. 

For  the  purpose  of  charging  a  part  of  the  personal  property  with 
the  payment  of  legacies  in  exemption  of  the  residue,  the  testator's 
intention  must  be  ascertained  as  in  other  cases,  either  by  expres- 
sions, or  a  fair  deduction  from  a  rational  construction  of  the  whole 
of  his  will. 

In  Bootle  v.  Blundell,(h)  before  stated,(t)  the  Court  declared,  that 
the  direction  for  paying  the  portions  to  the  testator's  daughters  out 
of  the  money  he  might  have  at  his  death  at  /wee,  or  in  the  Liverpool 
bank,  or  due  to  him  from  that  bank,  and  out  of  the  rents  and  fines 
which  should  be  owing  to  him  at  his  decease,  created  a  primary 
charge  of  those  portions,  upon  these  particular  funds,  in  exoneration 
of  the  remaining  personal  property. 

This  subject  being  connected  with  the  doctrine  relating  to  lega- 
cies in  their  natures  specific,  though  not  regularly  so,  as  being  given 
with  reference  to  a  particular  fund  for  their  payment,  the  reader 
is  referred  to  the  third  chapter  of  this  Treatise(fc)  for  additional 
authority. 

(rf)  14  Ves.  424.  (e)  5  Ves.  534.  (/)  2  EdeYi,  164. 

(P-)  With  respect  to  the  exoneration  of  a  wife's  estate  from  incumbrances  made 
upon  it  for  her  husband,  see  "Law  of  Husband  and  Wife,"  1  vol.  p.  140,  et.  seq.    . 
(f?  1  Meriv.  193.  201.  .      (0  Ante,  p.  481. 

(£)  And  particularly  to  the  fifth  section,  from  p.  166.  to  p.  171. 


498  Exoneration  [€H.  XII. 

7  The  exoneration  of  the  personal  estate  is  presumed  to  have  been 
intended  as  a  personal  benefit  for  the  individual  legatee ;  and  nothing 
is  more  clear  than  that  where  an  exemption  is  created  for  the  bene- 
fit of  a  particular  person,  and  not  in  favour  of  the  estate  generally, 
if  that  person  cannot  take  it,  the  benefit  will  never  arise  :  hence  it 
follows,  that  if  the  personal  estate  be  exonerated  from  debts  and  le- 
gacies in  favour  of  .#.,  and  he  die  before  the  testator,  by  which  event 
the  disposition  lapses ;  the  executors  or  next  of  kin  of  the  testator, 
who  accidentally  become  entitled  to  the  fund,  will  take  it  with  its 
primary  and  natural  obligation  to  discharge  the  debts  and  legacies. 
As  an  example  of  the  principle  of  these  remarks,  the  following  case 
is  adduced  : 

Mr.  Waring,  after  bequeathing'  two  annuities,  and  reciting  his 
purchase  of  the  manor  of  Ince,  which  he  had  mortgaged  for  the  pur- 
chase money,  devised  his  interest  in  the  estate  (subject  to  the  annui- 
ties, and  such  other  annuities,  bequests,  and  directions,  as  by  his 
will  or  by  codicil  he  might  give,  expressly  charging  his  Ince  estate 
therewith)  to  his  wife  for  life,  remainder  to  such  uses  as  she  should 
appoint,  but  not  to  take  effect  until  a  mortgage  affecting  one  of  his 
estates  should  be  discharged.  The  testator,  after  noticing  that  his 
wife  had  subjected  her  estate  to  raise  3000  J.  to  pay  1850Z.  upon  mort- 
gage of  his  estate  at  Oswestry,  the  surplus  of  which  sum  he  was  to 
receive,  directed  his  trustees  to  raise  the  3000Z.  and  discharge  that 
mortgage,  and  pay  the  residue  of  the  money  to  his  wife,  to  whom 
he  gave  the  rest  of  his  personal  property,  in  trust  .to  discharge  "  all 
his  debts,  for  which  at  his  d.eath  he  should  not  have  given  real  secu- 
rities," and  all  such  bequests  and  annuities  (not  including  those  be- 
fore mentioned)  as  he  should  therein  or  by  codicil  give,  and  with 
which  he  should  not  expressly  charge  his  estate  at  Ince,  and  to  keep 
the  residue  of  the  30001.  and  of  all  other  his  personal  estate,  to  her 
own  use  :  provided,  that  if  she  by  other  means  paid  the  said  mort- 
gage and  his  debts,  and  the  bequests  and  annuities  (not  including 
those  before  granted,)  the  3000/.  should  not  be  raised.  The  testa- 
tor's wife  died  before  him  ;  but  he  married  again,  and  died  without 
republishing  his  will.  Under  these  circumstances,  the  question  was 
between  the  testator's  heir  and  second  wife  ;  the  former  insisting  that 
the  personal  estate  was  applicable  in  exoneration  of  the  real,  to  dis- 
charge the  mortgage  debt  affecting  the  purchased  estate.  Lord 
Mvanley,  after  admitting  that  the  first  wife  would  have  taken  the 
personal  fund  exempt  from  debts,  for  which  the  testator  had  given 
real  securities,  determined  that  the  exemption  was  personal  to  her, 
and  consequently  that  the  privilege  determined  with  her  life.(Z) 

8.  We  shall  conclude  this  chapter  in  observing,  that  the  real  estate, 
when  effectually  charged  with  the  payment  of  debts  or  legacies,  will 
be  liable  to  bear  the  burthen  once  only ;  so  that  creditors  or  lega- 
tees cannot  resort  to  it  again,  if  the  persons  entrusted  with  the  power 
to  raise  and  pay  the  money,  raise,  mis-apply,  and  waste  it. 

Accordingly,  in  a  case,  which  was  ultimately  decided  in  the  House 
of  Lords,  Mich.  1689,  and  reported  in  Salkeld,(m)  a  man  limited  an 

(/)  Waring  v.  Ward,  5  Ves.  670.  and  see  Hale  v.  Cox,  3  Bro.  C.  C.  322,  stated 
ante,  p.  490  and  JVbelv.  Henley,  7  Price,  241.  259.  6\  P. 

(m)  Anon,  iSalk.  153.  etvide  Carter  v.  Barnadiston,  1  P.  Will.  505.  518.  S.  P. 


SECT.  III.]  of  the  Personal  Estate.  499 

estate  to  trustees  for  payment  of  debts  and  legacies.  The  trustees 
raised  all  the  money,  and  the  heir  prayed  to  have  the  land  ;  which 
was  opposed,  on  the  ground  of  the  trustees  not  having  applied  the 
money  in  conformity  with  the  trust,  but  converted  it  to  their  own 
use,  so  that  the  debts  and  legacies  remained  unpaid.  But  it  was  re- 
solved, that  the  heir  should  have  the  land  discharged,  and  the  lega- 
tees be  left  to  their  remedy  against  the  trustees  ;  upon  the  principle, 
that  the  estate  was  debtor  for  the  debts  and  legacies  only,  and  not 
for  the  misconduct  of  the  trustees ;  whence  it  followed,  that  the  es- 
tate continued  liable  so  long  as  the  debts  and  legacies  should  or 
might  be  paid,  and  no  longer ;  and  that  when  the  land  had  once 
borne  its  burthen,  and  the  money  raised,  it  was  discharged,  and  the 
trustees  alone  were  liable. 


CHAPTER  XIII. 

Of  Legacies  upon  Condition 

IN  preceding  parts  of  this  work,  certain  species  of  conditional 
legacies  have  been  noticed;  which,  from  their  importance,  it  was 
thought  expedient  to  make  the  subjects  of  two  distinct  chapters. (a) 
In  the  present  chapter  it  is  proposed  to  treat  of  conditional  bequests 
generally  under  the  following  heads : 

SECT.  I.  Conditions  precedent  and  subsequent. 

1. —  When  the  conditions  are  precedent,  and  distin- 
guished from  limitations. 

2. —  When  such  conditions  are  impossible. 
3. — When  illegal,  and  of  precedent  conditions  in  re- 
straint of  marriage. 
4. —  Conditions  subsequent. 
SECT.  II.  Performance  of  Conditions. 

1 . —  When  the  conditions  are  precedent. 

A.  Where  the  performance  is  not  within  the  time 

mentioned  in  the  condition. 

B.  From  what  period  the  time  for  performance 

is  to  be  computed. 

C.  When  the  legatee  has  the  whole  of  life  to  per- 
form the  condition. 

D.  Right  of  executors  to  perform  the  condition. 

E.  Where  legacies  are  given  to  executors  or  trus- 

tees. 

2. —  When  the  conditions  are  subsequent. 

A.  Where  they  are  impossible. 

B.  Where  they  are  repugnant  and  illegal. 

C.  When  they  are  not  to  dispute  the  validity  of 

wills  or  bequests. 

(a)  Chap.  X.  and  XI. 


500  Of  Legacies  [Cn.  XIII. 

D.   Where  the  time  of  payment  of  legacy.,  and  the 
condition  to  divest  it  are  inconsistent. 

3. —  When  the  conditions  are  in  restraint  of  marriage? 
whether  precedent  or  subsequent. 

A.  Where  the  conditions  require  marriages  with 

consent. 

(A.  1.)  At  what  time  consent  ought  tobe  obtained. 
(A.  2.)  And  from  whom. 
v         (A.  3.)   What  will  be  a  sufficient  consent. 

FIRST. —  Where  the  consent  is  general, 
i.  e.  to  marry  any  person. 

SECOND. — As  to  retracting  consent, 
THIRD. —  Conditional  assents. 

FOURTH. — Importance  of  legatee's  sup- 
position that  there  is  no  consent,  when 
it  is  judicially  considered  as  given. 

FIFTH. — Of  implied  consents. 

SIXTH. — Effect  of  consents  by  testators 
themselves  to  marriages,  required  by 
their  wills  to  be  had  with  consent  after 
their  deaths. 

(A.  4.)  Whether  conditions  requiring  consent  are 
fully  performed  by  first  marriages  with 
consent. 

(A.  5.)  Whether  such  conditions  will  be  confined 
to  the  periods  appointed  for  payment  of 
the  legacies. 

[a.]  And  the  effect  of  marriages  without  con- 
sent when  the  legatee  afterwards  survives 
the  time  when  the  legacy  is  payable. 

(A.  6.)  J2s  to  conditions  requiring  marriages 
with  consent  being  considered  in  ter- 
rorem. 

B.  Conditions  requiring  marriages  with  persons 

bearing  the  surnames  of  testators. 

SECT.  III.  Respecting  FORFEITURE  generally,  by  non-com- 
pliance with  testamentary  conditions. 

SECT.  IV.  Necessity  of  giving  NOTICE  of  conditions. 
1 . — In  regard  to  personal  bequests. 
2. — When  the  devise  is  of  real  estate. 


A  Legacy  upon  condition  may  be  defined,  "  a  bequest,  whose 
existence  depends  upon  the  happening,  or  not  happening,  of  some 
uncertain  event,  by  which  it  is  either  to  take  place,  or  be  defeated." 
In  deeds,  &c.  which  are  presumed  to  be  made  with  great  care,  the 


SECT.  I.]  upon  Condition  501 

law  has  ordained  certain  appropriate  words  to  create  conditions  ; 
but  in  wills,  other  words  are  sufficient  for  the  purpose,  by  reason 
of  the  indulgence  the  same  law  allows  to  that  imbecility  of  body 
and  mind,  under  which  it  considers  testators  to  labour,  at  the  period 
of  making  those  instruments.  In  all  cases,  therefore,  where  the  in- 
tention can  be  collected,  that  the  bequest  should  be  conditional, 
and  the  terms  are  so  definite  as  to  admit  of  execution,  that  intent, 
if  legal,  will  be  effectuated  by  whatever  words  expressed.(o)  This 
was  exemplified  ito  the  following  instance  : 

The  testatrix,  bjNflf  codicil,  bequeathed  to  her  son  (the  plaintiff) 
as  follows:  "  Providetkmy  son  changes  the  course  of  life  he  has  too 
long  followed,  and  will  give  up  all  his  low  company,  and  frequent- 
ing public  houses  entirely,  I  then  leave  him,  but  not  otherwise,  the 
interest  of  5500/.  for  life,"  &c.  And  if  he  should  not  do  so,  she 
gave  him  only  50/.  a  year  for  the  same  period.  The  evidence  of  the 
son  having  complied  with  the  condition  was  not  satisfactory  ;  and 
it  was  contended  on  his  behalf,  that  the  condition  was  so  vague,  as 
to  be  incapable  of  enforcement  in  a  court  of  justice.  But  Sir  W. 
Grant  was  of  a  contrary  opinion,  and  directed  the  Master  to  in- 
quire, whether  the  plaintiff  had  discontinued,  and  how  long,  to  fre- 
quent public  houses,  drinking  to  excess,  and  keeping  low  company, 
according  to  the  codicil. (6) 

Conditions  admit  of  a  two-fold  division,  viz.  into  conditions  pre- 
cedent, and  conditions  subsequent.  The  former  are  such  as  must 
generally  happen  or  be  performed  before  the  legacy  can  vest.  The 
latter  are  such  as  by  non-performance  or  breach  of  them  will,  in 
most  instances,  defeat  the  legacy  already  vested.  So  that  if  a  be- 
quest were  made  to  A.  upon  his  marriage  with  B.,  or  if,  or  provided, 
or  in  case,  he  married  C.  or  into  the  family  of  C.  ;(c)  or  at,  or  when, 
or  if,  or  provided,  or  in  case,  he  attained  twenty-one  ;(d)  the  bequest 
would  be  made  upon  a  condition  precedent  to  the  vesting  of  the 
legacy.  The  condition  would  be  alike  precedent,  and  require  com- 
pletion, if  the  bequest  were  made  to  «#.  being  abroad,  "  in  case  he 
should  ever  return  to  England"  ;(e)  or  if  a  legacy  were  given  to  the 
testator's  widow  payable  in  six  months  after  his  death,  provided  she 
released  her  right  to  dower  or  all  demands  upon  the  testator,(/)  or 
paid  to  C.  20l.(g).  But  if  a  term  of  years  were  devised  to  />.,  upon 
condition  that  he  paid  to  C.  1000Z.  at  Michalemas  next  after  the 
testator's  death,  it  would  be  a  subsequent  condition,  which  would 
devest  and  defeat  the  bequest,  if  omitted  to  be  performed. 

SECT.   I.    Of  conditions  precedent. 

1.  Distinction  between  condition  and  limitation,  and  the  con- 
sequences. 

Whenever  it  appears  that  the  happening  of  an  event,  or  the  perform- 
ance of  an  act,  was  intended  to  operate  as  a  condition  to  precede 

(a)  Swinb.  pt  4.  sect.  5.     Co.  Litt.  204.  a.  Touchst.  451.     Fulbeck's  Paral.  62. 
(6)  Tattersallv.  Hoivell,  2  Meriv.  26.  and  see  Neal  v.  Hanbury,  Pre.  Ch.  173. 
stated  ante,  p.  426. 

(c)  1  Bro.  C.  C.  55.  T.  Raym.  80.  Show.  Parl.  Ca.  84.  Co.  Litt.  206.  14  Ves.  392. 
(d)  Ante,  p.  383.  2  Yern.  333.  2  Atk.  41.     (e}  S^rigg  v.  Sprigg,  2  Vern.  r,94. 
?/)  Weldon  v.  Oxendon,  cited  Forrest,  273.  Taylor  v.  Pofiham,  1  Bro.  C.  C.  168. 
(§•)  Swinb.  pt.  4.  sect.  7. 
VOL.  i.  3  S 


502  Of  Legacies  [Cn.  XIII. 

the  vesting  of  a  legacy  or  devise,  it  is  essential  that  the  event  hap- 
pens, or  the  act  is  done,  since  no  interest  will  previously  vest  in  the 
legatee  or  devisee,(A)  as  has  been  shown  in  the  tenth  chapter  of 
this  Treatise.  In  addition  to  the  authorities  there  produced  are  the 
following  : 

In  Doe  v.  Shipphard,(i)  land  in  Essex  and  Lancaster  were  devised 
to  trustees,  to  pay  out  of  the  rents  to  the  testator's  married  daugh- 
ter, 20J.  annually,  for  her  separate  use  for  life,  and  the  remainder 
during  her  life,  and  the  whole  of  them  after  her  death  to  her  hus- 
band for  life.     "  And  in  case  his  daughter  survived  her  husband," 
the  testator  limited  the  estate  to  the  use  of  his  daughter  for  life, 
remainder  to  his  grand-son  and  heir  in  tail,  with  remainders  over. 
The  testator  then  devised  to  the  same  trustees,  other  lands  to  the 
use  of  his  daughter  and  her  husband,  and  the  survivor  of  them,  until 
his  grand-son  attained  the  age  of  twenty-five ;  at  which  period,  or  at 
the  death  of  the  survivor  of  the  daughter  and  her  hnsband,  these 
lands  were  to  be  to  the  use  of  the  grand-son  in  tail,  with  remainders 
over.     The  daughter  died  before  her  husband,  and  the  question  was, 
whether  her  surviving  him  was  not  a  condition  precedent  to  the 
several  limitations  over  of  the  Essex  and  Lancaster  estates,  which 
not  having  happened,  those  estates  devolved  upon  the  testator's 
heir?  And  the  Court  of  King's  Bench  decided,  that  the  contingency 
of  the  daughter  surviving  her  husband  was  a  condition  precedent 
to  the  vesting  of  the  limitations,  which  not  having  happened,  the 
heir  was  entitled. 

In  consistency  with  the  last  determination,  the  same  Court,  de- 
cided the  case  of  Doo  v.  Brabant,  stated  in  a  preceding  page.(J) 

But  whether  a  contingency,  apparently  denoting  a  condition  pre- 
cedent to  the  devise  or  bequest,  be  or  be  not  a  condition,  must  be 
determined  upon  a  fair  collection  of  the  testator's  intention  from  the 
whole  of  his  will.     Hence,  although  the  expression  used  by  him  may 
appear  to  denote   its  dependance  upon  a  contingency,  which  may 
not  happen,  still,  if  the  context  of  the  will  clearly  show  his  inten- 
tion, that  the  event  described  was  not  to  precede  the  vesting  of  the 
legacy,  but  the  legatee  should  have  it  at  a  particular  time,  whether 
the  contingency  happened  or  not,  the  form,  in  which  the  bequest  is 
made,  will  not  be  permitted  to  create  a  precedent  condition  ;(&) 
for  in  these  and  similar  cases,  courts  of  justice,  in  favour  of  the  in- 
tention, consider  the  executory  devises  as  limitations,  and  not  con- 
ditions, which  are  required  to  be  literally  performed,  previous  to  the 
vesting  of  any  interest,  as  we  have  seen ;  whereas  limitations  being 
construed  according  to  the  sense  and  intention  of  testators,  it  is  not 
necessary  that  every  particular  circumstance   should  take  place. 
Hence  have  arisen  those  cases,  where  a  testator  devised  to  the  child 
with  which  his  wife  was  enceinte,  and  if  it  died  before  twenty-one, 
then  over ;  the  limitation  over  was  held  good,  although  the  wife 
proved  not  to  have  been  enceinte,  and  there  was  no  express  devise 
upon  that  event.     The  principle  is  obvious.     The  intention  was 
clear  that  the  limitation  over  should  take  place,  if,  in  any  event,  the 
preceding  was  disappointed.     The  circumstance,  therefore,  of  there 

Sfiriggv.  Sfirigg,  2Vem.  394.  (?)  Dougl.  75. 

Ante,  p.  329.  and  see  Davis  v.  Norton,  2  P.  Will.  390.         (Jb)  Ante,  p.  387. 


SECT.  I.]  upon  Condition.  503 

happening  to  be  no  child  en  venire  sa  mere,  was  not  allowed  to  pre- 
vent the  alternative  bequest,  which  would  have  been  the  necessary 
consequence,  if  the  existence  of  the  child  en  ventre  sa  mere,  when 
the  will  was  made,  had  been  adjudged  an  essential  preliminary  to 
the  vesting  of  the  limitation  over;  i.  e.  if  it  had  been  considered  a 
condition  precedent.  The  following  is  a  principal  authority  upon 
this  subject : 

In  Jones  v.  Westcomb,(l)  the  testator  bequeathed  a  term  of  years 
to  his  wife  for  life,  remainder  to  the  child  she  was  then  enceinte  with ; 
and,  if  it  died  under  twenty-one,  a  third  part  of  the  term  was  to  be- 
long to  his  wife,  and  the  remaining  two-thirds  to  other  persons. 
Although  the  wife  was  not  enceinte  when  the  will  was  made,  Lord 
Harcourt,  determined  that  the  devise  to  her  was  good. 

It  is  observable  in  the  last  case,  that  the  devise  to  the  infant  be- 
ing ineffectual,  was  considered  as  if  it  had  never  been  made.  Ac- 
cording to  the  declaration  of  Lee,  C.  J.,  (m)  the  law  is  the  same, 
whether  the  preceding  devise  be  originally  void  or  become  so  by 
non-existence  or  non-entity  of  the  person.  And  it  is  to  be  remark- 
ed, that  there  is  no  distinction  in  those  respects,  whether  the  sub- 
ject of  disposition  be  real  or  personal  estate  ;  and  that  the  the  prin- 
ciple of  the  last  class  of  authorities  has  been  applied  to  other  cases 
both  at  law  and  in  equity. 

Thus  in  Holcroft's  case(n)  the  devise  was  to  the  use  of  the  first 
son  of  Sir  John  Holcroft  in  tail,  and  so  to  the  second,  third,  and 
fourth  sons  in  succession.  And  if  the  fourth  son  died  without 
issue,  remainder  to  Hamlet  Holcroft  with  remainders  over.  Sir 
John  had  only  one  son  ;  upon  which  the  question  was,  whether  the 
subsequent  uses  could  arise,  and  it  was  determined  in  the  affirma- 
tive, since  the  words  amounted  to  no  more  than  a  limitation  of  the 
estate,  and  were  not  a  condition  precedent  to  the  estate  of  Hamlet. 

So  in  Bradford  v.  Foley,(o)  the  testator  devised  his  real  estate  to 
his  son,  Thomas  Hey,  for  life,  remainder  to  his  first  and  other  sons 
by  any  future  wife  in  tail  male,  &c. ;  but  if  Thomas  married  a 
relation  of  his  then  wife,  the  estate  was  to  be  to  the  use  of  the 
children  of  John  Hey  as  tenants  in  common.  Thomas  did  not 
marry  again,  and  yet  the  Court  of  King's  Bench  decided,  that  the 
children  of  John  living  at  the  testator's  death  were  entitled,  which 
could  not  be,  if  the  second  marriage  of  Thomas  had  been  consider- 
ed a  condition  precedent  to  the  limitation  over  to  those  children. 

In  the  next  cases  courts  of  equity  followed  the  rule  of  law. 

Accordingly,  in  Avelyn  v.  Ward,(  p)  the  testator  devised  his  real 
estate  to  his  brother  and  heir,  Goddard  Urling,  in  fee,  upon  condi- 
tion that  he  gave  to  the  trustees  a  general  release  within  three 
months  after  his  (the  testator's)  death.  But  if  Goddard  neglected 
to  do  so,  the  testator  gave  his  real  estate  to  Richard  Ward  and  his 
heirs.  Goddard  died  before  the  testator,  and  Lord  Hardwicke  de- 
termined that  the  devise  over  took  effect,  since  the  contingency, 

(0  Pre.  Ch.  316.  1  Eq.  Ca.  Abr.  245  &  C.  and  see  Gulliver  v.  Wickett,  1 
Wils.  C.  P.  105.  Statham  v.  Bell,  Cowp.  41.  and  Scatterwood  v.  Edge,  1  Salk. 
229.  and  3  Ves.  320.  The  case  of  Grascot  v.  Warren,  12  Mod.  128.  contra,  was 
decided  without  argument,  and  may  be  considered  of  no  authority. 

(m)  In  Andrews  v.  Fulham,  1  Ves.  sen.  421.     (n)  Moor,  486.  Cited  Cowp.  42. 

(o)Dougl.  63.  (A)  1  Ves.  sen.  420. 


504  Of  Legacies  [Cn.  XIII. 

according  to  the  intention,  was  not  a  condition  precedent  to  such 
devise,  but  that  the  contingency  and  devise  over  operated  as  a  con- 
ditional limitation,  which  enabled  the  Court  to  decide  agreeably  to 
the  intent  of  the  testator ;  which  was,  that,  if  no  release  was  ex- 
ecuted, the  estate  should  go  over. 

The  following  are  instances  in  which  courts  of  equity  adopted 
the  like  construction  in  testamentary  dispositions  of  personal  pro- 
perty : 

In  Parry  v.  Boodk(q)  the  testator  gave  to  Charles  Douglas  a 
a  bond  debt  of  2000J. ;  but  if  Charles  should  not  be  in  life,  the 
money  was  to  be  divided  between  the  plaintiffs.  Charles,  unknown 
to  the  testator,  was  living  at  the  date  of  the  will,  but  died  before 
him  ;  and  Lord  Kenyon,  M.  R.  determined,  that  the  plaintiffs  and 
not  the  residuary  legatee,  were  entitled  to  the  bond-debt. 

It  is  observable  in  the  last  case,  that  the  testator  intended  the  le- 
gacy for  the  plaintiffs  if  Charles  were  not  in  a  condition  to  take  it. 
So  that,  although  the  event  upon  which  the  limitation  over  was  ex- 
pressed, did  not  literally  occur,  still,  as  it  happened  in  effect,  the 
Court,  upon  authority  of  the  testator's  intention,  was  of  opinion, 
that  the  death  of  Charles  when  the  will  was  made  was  not  a  condi- 
tion precedent  to  the  bequest  to  the  plaintiffs  ;  but  it  construed  the 
words  "  if  Charles  should  not  be  in  life,"  in  the  sense  of  his  not 
being  alive  at  the  death  of  the  testator,  the  period  when  the  bequest 
to  him  was  to  take  place. 

Also  in  Pearsall  v.  Simpson,(r)  the  testatrix  vested  personal 
estate  in  trustees,  to  pay  the  interest  to  A,  and  B.  for  life,  in  suc- 
cession ;  and,  after  the  survivor's  death,  to  divide  the  capital  among 
their  children  then  living  ;  but  if  neither  of  them  left  children  who 
should  attain  the  age  of  twenty-one,  to  pay  the  interest  to  C.  for 
life ;  "  and  after  C.'s  death  in  case  he  should  become  entitled  to 
such  interest,"  to  divide  the  principal  between  D.  and  E.  C.  died 
before  B.  and  neither  A.  nor  B.  left  children  at  their  decease.  It 
was  nevertheless  determined  by  Sir  W.  Grant,  M.  R.  that  the  limi- 
tation over  to  D.  and  E.  took  effect. 

His  reasons  seem  to  have  been  these  :  it  would  be  absurd  to  im- 
pute an  intention  to  the  testatrix  to  make  the  bequest  to  D.  and  E, 
depend  upon  C.'s  living  to  receive  the  interest,  (an  event  uncon- 
nected with  any  intention  in  regard  to  them,)  when  the  will  afford- 
ed a  more  rational  indication  of  her  meaning,  which  appeared  to- 
be,  that  the  limitation  over  to  D.  and  E.  should  take  effect  upon 
the  death  of  C.  whenever  that  event  happened.  The  rest  of  her 
expressions,  in  relation  to  that  circumstance,  being  merely  intro- 
duced in  consequence  of  recollecting  the  uncertainty,  whether  C. 
would  live  to  enjoy  the  interest,  and  not  with  an  intent  to  make 
that  event  a  condition  precedent  to  the  vesting  of  the  executory 
limitation. 

Again  in  Meadows  v.  Parry,(s]  the  testator  gave  his  residuary 
estate  to  trustees  for  the  benefit  of  such  children  as  he  should 
leave  at  his  death  ;  but  if  all  of  them  died  under  twenty-one,  the 
residue  was  to  go  to  his  wife.  The  testator  never  had  a  child,  and 

(7)  1  Cox,  183.  (r)  15  Ves.  29.  33. 

(s)  1  Ves  &  Bea.  124.  and  see  Fonnereau  v.  Fonnereau,  3  Atk.  315.  S.  P. 


SECT.  I.]  upon  Condition  505 

Sir  W.  Grant,  M.  R.  determined,  upon  the  authority  of  the  preced- 
ing cases,  that  the  bequest  to  the  wife  took  place. 

2.  But,  when  there  is  no  doubt  of  the  bequest  being  made  upon 
a  preceding  condition,  it  may  happen  that  the  terms  of  it  are  im- 
possible; an  impossibility  which  may  be  commensurate  with  the 
creation  of  it,  or  be  subsequently  rendered  so  by  the  act  of  God  or 
of  man.  Or  the  terms  or  event  upon  which  a  legacy  is  given  may 
be  illegal.  In  these  cases  it  may  be  asked,  can  the  legatees  claim 
their  legacies,  although  the  terms  upon  which  they  are  given,  or 
the  events  upon  which  they  are  to  vest,  cannot  be  performed  or 
happen  9  To  answer  these  inquiries,  it  is  necessary  to  take  a  short 
view  of  the  principles  of  the  common  and  civil  laws  upon  these 
subjects. 

It  is  a  general  rule  of  the  common  law,  applicable  to  real  estates, 
that  where  an  interest  is  so  devised  as  only  to  arise  upon  a  preceding 
condition,  it  cannot  vest  until  that  condition  be  performed,  or  the 
event  happen,  upon  which  it  is  given. (t)  This  rule  has  been  ac- 
knowledged and  acted  upon  ever  since  the  time  of  Lord  Coke.(u) 
The  principle  is,  that  there  is  no  devise  until  the  happening  of  the 
event,  or  performance  of  the  terms  upon  which  the  disposition  is 
made  ;  a  principle  which  applies  to  every  case,  so  that  although  the 
condition  require  the  performance  of  an  impossible  act,  as  for  the 
devisee  to  go  to  Paris  in  half  an  hour,  or  it  require  the  devisee  to  do 
an  illegal  act,  as  to  kill  B.  or  to  burn  his  house,  (conditions  mala  in 
se ;)  or  whether  it  require  a  woman  to  separate  from  her  husband,  (a 
condition  against  the  policy  of  law  ;)  or  whether  the  devise  be  made 
on  condition  that  the  legatee  have  criminal  connexion  with  a  parti- 
cular person  (a  condition  contra  bonos  mores ;)  the  before  stated 
principle  authorizes  the  conclusion,  that,  as  all  such  conditions  are 
void,  the  dispositions  to  arise  only  upon  their  performance  are  also 
void.  But  the  rule  of  the  Civil  law  is  different,  so  far  as  it  has  been 
received ;  and  by  that  law  bequests  of  personal  property  are  deter- 
mined both  in  the  Ecclesiastical  courts  and  in  courts  of  Equity.(x) 
Consequently,  the  Common  law  is  partially  superseded  in  the  con- 
struction of  personal  bequests,  and  the  Civil  law  is  referred  to  upon 
those  occasions.  It  seems,  therefore,  that  what  is  a  good  or  void 
condition  by  the  Civil  law  (attending  to  the  qualification  before  men- 
tioned,) is  the  same  in  Equity  upon  the  subject  of  legacies ;  and 
since  that  law  made  no  distinction  between  the  circumstance,  whe- 
ther the  condition  were  precedent  or  subsequent,  but  in  either  case 
rejected  the  impossible  or  illegal  part  of  it,  and,  on  performance  of 
the  remainder,  gave  the  legacy  to  the  legatee ;  so  it  seems  a  court 
of  Equity  would  do  under  similar  circumstances.  We  shall  begin 
with  considering  bequests  made  upon  impossible  conditions  which 
are  precedent. 

FIRST,  Bequests  made  upon  impossible  conditions  which  are  pre- 
cedent. 

It  is  the  general  rule  of  the  Civil  law,  that,  when  the  condition, 
upon  which  a  legacy  is  given,  is  impossible,  the  bequest  is  single, 
i.  e.  discharged  from  the  condition  :  so  that,  if  a  legacy  were  given  to 

(0  Co.  Litt,  206.  Ughtred'sca&e,  7  Rep.  10.  a.  TouchsL  132.  451.  2  Black. 
Com.  156.  («)  6  Term.  Rep.  719.  (*)  2  Dick.  720. 


506  Of  Legacies  [Cn.  XIII. 

B.j  if  he  drank  up  all  the  water  in  the  sea,  he  would  be  entitled  to 
the  legacy,  as  if  the  disposition  had  been  simple  or  without  any  con- 
dition, (y) 

But  that  rule  was  not  without  its  exceptions  ;  for,  although  the 
condition  happened  to  be  impossible  at  the  time  of  the  gift,  yet  if 
that  fact  were  unknown  to  the  testator,  and  from  the  nature  of  the 
requisition  it  appeared  to  be  the  sole  motive  of  the  bequest,  the  im- 
possibility of  the  condition  would  preclude  the  legatee  of  his  legacy. 

Suppose  then  a  bequest  to  B.  if  he  married  the  testator's  daugh- 
ter, who  happened  to  be  then  dead  ;  as  non  constat  the  legacy  would 
have  been  given,  if  the  testator  had  been  apprised  of  his  daughter's 
death,  the  impossibility  of  the  condition  would  not  be  allowed  to 
operate  to  the  advantage  of  the  legatee. (z) 

Upon  the  same  reasoning,  if  the  testator's  daughter  had  been  living 
at  the  date  of  the  will,  but  died  before  her  marriage  with  B.  could 
be  solemnized,  by  which  accident  the  condition,  which  was  possible 
in  its  creation,  became  impossible  by  an  unavoidable  subsequent 
event,  the  act  of  God  ;  still  the  condition  was  effectual,  and  imprac- 
ticability of  its  performance  would  prevent  the  title  of  B.  to  the 
legacy,  (a) 

It  is  presumed  that  the  decisions  of  Courts  of  Equity,  in  such  cases 
as  the  above,  would  accord  with  the  Civil  code ;  for  those  rules  and 
exceptions  are  established  on  great  authority,  and  are  founded  upon 
good  sense. (b) 

Under  the  head  of  impossible  conditions,  those  may  be  classed, 
where  testators,  through  ignorance,  have  required  acts  to  be  done, 
that  have  been  performed,  or  events  to  happen,  which  have  taken 
place.  In  those  instances,  as  the  conditions  are  impossible,  the 
legatees  take  their  legacies  pure  and  unqualified.  The  following 
are  examples  of  this  proposition  : 

Suppose  a  legacy  to  be  given  to  B.  "  if  he  remit  a  debt  due  to 
him  from  C. :"  a  demand,  which  happened  to  be  remitted  prior  to 
the  date  of  the  will ;  the  bequest  will  be  single  and  absolute  in  B. 

So  also  if  a  legacy  were  given  to  C.  upon  the  contingency  of  a 
particular  ship  of  the  testator  returning  from  a  voyage,  in  the  prose- 
cution of  which  she  is  then  supposed  to  be,  when  in  fact  the  vessel 
had  arrived  ;  C.  would  be  entitled  to  the  legacy. (c) 

In  like  manner,  if  the  impossibility  of  the  condition  arise  from  the 
subsequent  act  of  the  testator,  the  legacy  will  be  single  and  abso- 
lute. An  example  of  which  is  afforded  in  the  following  case. 

Mr.  DarJey  being  seised  of  an  estate  called  Battens,  and  entitled 
to  an  adjoining  house  called  Bond's  Walls  for  an  unexpired  term  of 
years,  devised  the  latter  upon  the  same  trusts  as  he  had  declared  of 
the  former,  so  far  as  the  law  would  permit ;  and  he  bequeathed  to 
his  wife  the  rents  of  all  his  chattel  estates  for  life,  "  if  she  chose  to 
reside  at  Battens :"  and  declared  that  she  should  enjoy  for  the  same 
period,  the  use  of  all  his  household  goods,  plate,  and  furniture  at 
Battens,  and  the  live  and  dead  stock  upon  the  premises.  The  tes- 
tator afterwards  suffered  a  recovery  of  Battens,  by  which  the  dispo- 
sitions of  it  by  his  will  were  revoked,  and  it  devolved  upon  his  heir 

(y)  Swinb.  pt  4.  sect.  6.  art  2,  (z)  Ibid.  art.  8.  (a)  Ibid,  art  14. 

(A)  Per  Lord  JVbrt/iingtan,  1  Eden,  117.  (c)  Swinb.  pt  4.  sect  14. 


SECT.  I.]  upon  Condition.  507 

at  law.  Hence  the  widow  was  prevented  residing  at  Battens,  th  e 
condition  upon  which  the  benefits  were  given  to  her  by  the  will :  nev  er- 
theless  the  House  of  Lords,  in  reversal  of  a  decree  by  Lord  Camden, 
declared  in  favour  of  the  widow,  upon  the  principle,  that  the  be- 
quests to  her  were  discharged  from  the  condition,  as  the  recovery 
suffered  of  Battens  by  the  testator,  had  disabled  her  to  perform  it.(d) 
SECOND.  Precedent  conditions  which  are  ilUgal. 
It  is  a  rule  of  the  Civil  law,  that,  if  a  precedent  condition  require 
the  performance  of  an  act  malum  in  se,  as  to  kill  B.,  burn  his  house, 
&c.;  not  only  the  condition,  but  the  disposition  itself  is  void  ;(e)  a 
rule,  which  being  in  unison  with  the  Common  law(/)  in  devises  of 
real  estate,  it  is  presumed  that  similar  dispositions  of  personal  pro- 
perty will  receive  the  like  construction  in  courts  of  Equity. 

When,  however,  the  illegality  of  the  condition  does  not  concern 
any  thing  malum  in  se,  but  is  merely  against  a  rule  or  the  policy  of 
law,  the  condition  only  is  void,  and  the  bequest  single  and  good  ; 
for  the  condition  not  being  lawful,  it  is  held  in  the  phrase  of  the  Civil 
law  pro  non  adject  a. 

That  this  is  so  in  Equity  appears  from  the  following  case  : 
In  Brown  v.  Peck,(g}  Mr.  Sparks  bequeathed  to  his  niece  Rebecca 
151.  for  mourning  ;  and  if  she  lived  with  her  husband,  21.  a  month, 
and  no  more  ;  but  if  she  lived  from  him,  and  with  her  mother,  then 
she  was  to  receive  51.  a  month.  Lord  Northington  was  of  opinion, 
that  Rebecca  was  entitled  to  the  monthly  payment  of  51.  observing, 
that  the  condition  being  both  impossible  at  the  time  of  its  imposition, 
and  contra  bonos  mores,  the  bequest  was  simple  and  pure.  See 
also  Poor  v.  Mial,  6  Madd.  32. 

WTith  respect  to  the  legality  of  conditions  in  testaments  requiring 
the  marriage  of  legatees  under  particular  limitations  or  qualifica- 
tions, courts  of  Equity  have  been  not  a  little  embarrassed,  since  the 
Civil  law,  in  framing  its  original  rule  upon  this  subject,  showed 
great  jealousy  of  all  conditions  which  imposed  the  least  restraint 
upon  entering  into  that  engagement ;  establishing  the  legacies  and 
avoiding  the  conditions,  without  distinction  as  to  their  being  pre- 
cedent or  subsequent.  The  Ecclesiastical  courts  having  blindly 
adopted  that  rule,  and  courts  of  Equity  entertaining  a  concurrent 
jurisdiction  with  them  on  the  present  subject,  the  latter  tribunals,  with 
a  view  to  uniformity  of  decision,  have  been  more  or  less  biassed  at 
different  periods  by  the  Civil  law.  That  a  restraint  upon  marriage 
may  be  judicious  and  proper,  admits  of  no  doubt,  and  its  total  rejec- 
tion by  that  law,  as  at  first  established,  appears  to  have  been  founded 
on  no  general  principle,  but  upon  the  particular  circumstances  of 
the  Roman  empire  at  the  time.  After  the  civil  war,  the  depopula- 
tion occasioned  by  it  led  to  habits  of  celibacy.  In  the  reign  of 
Augustus  the  Julian  law,  which  went  too  far,  and  was  corrected  by 
the  Lex  Papia  Poppaa,  not  only  offered  encouragement  to  marriage, 
but  laid  heavy  impositions  upon  celibacy.  The  rule  being  thus 
established  for  the  encouragement  of  marriage,  it  followed,  that  no 
person  could  impose  restraints  directly  contrary  to  the  law.  Hence, 
under  this  local  and  political  regulation,  it  became  a  rule  of  con- 

d)  Darley  v.  Langworthy,  3  Bro.  Parl.  Ca.  359  8vo.  ed. 

>)  Swinb.  pt.  4.  sect,  5.  art,  9.  &  16.      (/)  Co.  Lit.  206.      (5-)  1  Eden,  140. 


508  Of  Legacies  [Cn.  XIII. 

struction  that  these  restrictive  conditions  were  void  :  a  rule,  certainly 
inapplicable  to  a  country,  where  there  is  no  law  to  restrain  indivi- 
duals, from  exercising  their  own  discretion  as  to  the  time  and  cir- 
cumstances of  the  marriages,  which  their  children  or  the  objects  of 
their  bounty  may  contract.  How  such  a  rule  so  established  ever 
came  to  be  adopted  in  the  Ecclesiastical  courts  of  this  kingdom,  is 
only  to  be  accounted  for  from  the  circumstance,  that,  in  the  dark 
ages,  soon  after  the  revival  of  letters,  there  was  a  blind  superstitious 
adherence  to  the  text  of  the  Civil  law.  Judges  never  reasoned,  but 
only  looked  into  books,  and  transferred  the  rules  there  found  into 
their  courts,  as  positive  rules  to  direct  them,  without  considering  the 
circumstances. (h)  Such  probably  was  the  manner,  in  which  the 
Ecclesiastical  courts  obtained  and  adopted  the  rule  of  the  Civil  or 
Canon  law  as  first  established  upon  the  present  subject,  without  at- 
tending to  its  subsequent  modifications  j  and  it  seems  to  have  in- 
sinuated itself  into  courts  of  Equity  in  a  similar  manner.  The  early 
cases  refer  ia»general  to  the  Canon  law,  as  the  standard  by  which 
all  legacies  are  to  be  governed  j  towards  the  latter  end  of  the  last, 
and  the  beginning  of  the  present,  century,  the  matter  is  more  loosely 
handled  :  The  Canon  law  is  not  referred  to  as  affording  a  too  posi- 
tive rule  ;  but  conditions  of  this  description  are  treated  as  partaking 
of  the  force  allowed  them  by  the  law  of  England,  though,  at  the 
same  time,  as  unfavourable  to  the  good  order  of  society  ;  and  at 
length  it  became  a  common  practice  to  hold  such  conditions  only 
in  terrorem.(i)  The  unreasonableness  of  the  supposition,  that  a  tes- 
tator did  not  mean  what  he  expressed,  combined  with  the  considera- 
tion, that  the  law  of  this  country  did  not  in  policy  restrain  the  im- 
positions of  judicious  restraints  upon  marrige,  has  at  last,  amid  con- 
flicting opinions,  fixed  the  law  upon  this  subject,  agreeable  to  the 
corrected  rule  of  the  Civil  law;  and  it  is  now  settled,  that  condi- 
tions, imposing  particular  restraints  upon  marriage,  in  testamentary 
dispositions  of  personal  property,  are  legal  and  binding. 

If  then  a  bequest  be  made  to  Ji.  upon  his  marriage  under  twenty- 
one,  or  other  reasonable  period,  with  consent  of  parents,  trustees, 
executors,  or  guardians,  it  will  not  vest  in  him  until  he  comply  with 
that  requisite ;  for  the  condition  is  precedent  and  legal,  notwith- 
standing the  contrary  decision  of  Lord  Hardivicke  in  Reynish  v. 
Martin,(k)  and  the  preceding  determination  by  Justice  Parker  in 
Underwood  v.  Morris.(l) 

Accordingly,  in  Hemmings  v.  Munckley,(m)  Mr.  Clutsam  be- 
queathed five-sixteenths  of  his  residuary  personal  estate  to  trustees, 
to  invest  and  pay  the  interest  to  his  daughter  Rachael,  upon  her  at- 
taining the  age  of  twenty-eight,  or  day  of  marriage,  which  should 
first  happen,  provided  she  married  with  the  approbation  of  his  ex- 
ecutors or  those  then  living.  The  remaining  eleven-sixteenths  the 
testator  gave  among  his  other  four  children,  and  declared,  that  if 
either  of  his  sons  or  daughters  died  before  their  shares  became  pay- 
able, their  parts  should  belong  to  his  children  then  living,  and  the 
issue  of  any  who  might  be  dead  at  that  period,  per  stirpes,  at  the 
same  times  as  their  original  shares  would  become  due.  Rachael 

(A)  3  Ves.  96.  (/)  2  Bro.  C.  C.  487.  (fc)  3  Atk.  330. 

(/)  2  Atk,  184.  (w)  1  Bro.  C.  C,  303.  ed,  by  Belt. 


SECT.-  I.  J  upon  Condition.  509 

married  Mr.  Curley  without  the  consent  of  the  executors,  and  had  a 
child  (to  whom  Curley  was  administrator),  and  died  under  the  age 
of  twenty-eight.  The  surviving  children  of  the  testator  .insisted, 
that  RachaeVs  portion  never  vested,  since  she  married  without  con- 
sent, and  did  not  attain  the  age  of  twenty-eight.  On  the  contrary, 
it  was  urged  for  Mr.  Curley,  the  administrator  of  his  wife  and  child, 
that  the  legacy  vested  in  Rachael  upon  her  marriage,  notwithstand- 
ing the  condition  which  was  to  be  considered  in  terrorem  only,  and 
the  case  of  Underwood  v.  Morris  (last  referred  to)  was  cited.  But 
Lord  Rosslyn  said,  he  doubted  the  authority  of  that  case,  and  deter- 
mined that  the  legacy  did  not  vest.  There  having  been  five  chil- 
dren of  the  testator,  his  Lordship  held,  that  the  infant  child  of  Ra- 
chael was  entitled  to  one-fifth  of  her  mother's  share  under  the  limi- 
tation over,  as  it  answered  the  description  of  "  issue  of  a  deceased 
child;"  which  fifth  part  he  directed  to- be. paid  to  her  father  as  her 
administrator.- 

The  last  case  was  followed  by  a  similar  decision  of  Lord  Thurlow 
in  Scott  v.  Tyler ;(ri)  where,  although  there  was  a  limitation  over  of 
the  legacy,  it  was  not  dependant  upon  a  marriage  without  consent, 
but  upon  a  dying  under  a  particular  period,  without  marriage  ever 
having  taken  place ;  a  limitation  which  was  disappointed  by  the 
marriage  of  the  legatee,  though  without  consent. 

There  Mr.  Kee  bequeathed  10,OOOJ.  South  Sea  annuities  to  his 
executors,  in  trust  to  pay  part  of  the  dividends  for  the  support  and 
education  of  his  god-daughter  Miss  Tyler  during  her  minority,  di- 
recting that  a  moiety  of  the  capital,  with  the  savings,  should  be 
transferred  to  her  at  twenty-one,  in  case  she  were  then  unmarried, 
and  the  remaining  moiety  at  the  age  of  twenty-five,  if  she  should 
be  then  single.  "  But  in  case  she  married  before  twenty-one  with 
the  consent  of  her  mother,"  one  half  of  the  10,OOOZ.  and  savings  was 
to  be  settled  upon  her  and-  her  issue,  at  the  discretion  of  the  mother, 
and  the  remainder  of  the  annuities  was  to  be  at  her  own  disposal; 
but  if  she  died  under  twenty-five  unmarried,  the  testator  gave  the 
10,0001.  to  her  mother,  who  was  appointed  residuary  legatee.  Miss 
Tyler,  while  an  infant,  married  the  plaintiff  Scott,  against  the  con- 
sent of  her  mother,  upon  which  they  claimed  the  10,0001.  as  an  ab- 
solute legacy,  insisting  that  the  condition,  requiring  the  consent  of 
the  mother  to  the  marriage,  was  void  as  against  policy,  and  by  the 
Civil  law  which  was  the  rule  followed  by  the  Courts  in  this  kingdom. 
But  Lord  Thurlow,  after  taking  a  review  of  that  law,  and  the  extent 
of  its  adoption  into  the  Courts  of  this  country,  determined  the  con- 
dition to  be  obligatory.  Whence  it  followed,  that  as  the  legatee 
married  under  twenty-one  without  her  mother's  consent,  she  never 
came  under  the  description  to  which  the  gift  of  the  10,OOOZ.  attached, 
consequently  the  fund  being  undisposed  of,  formed  part  of  the  re- 
sidue which  was  given  to  the  mother. 

Lord  Rosslyn  was  called  upon  to  consider  his  opinion  in  Hem- 
mings  v.  Munckley,  in  the  following  case;  and  his  Lordship  ad- 
hered to  that  opinion. 

In  Stackpok  v.  Beaumont,(o)  Sir   Thomas  Blacket  devised  his 

(n)  2  Bra  C.  C.  431.  489.  His  Lordship's  judgment  is  more  fully  reported  in 
2  Dick,  712.  (o)  3  Ves.  89.  and  see  Knight  v.  Cameron,  14  Ves. 

VOL.  i.  3  T 


510  Of  Legacies  [C».  XIII. 

real  estates  in  remainder  to  the  use  of  his  third  natural  daughter 
Louisa  Weniworth,  or  such  person,  if  any,  with  whom  she  should 
first  intermarry,  "  if  before  twenty-one,  then  with  the  consent  of 
his  trustees  or  the  survivor  of  them,"  for  their  joint  lives  and  the 
life  of  the  survivor,  &c.  Towards  the  conclusion  of  the  will,  the 
testator  gave  to  Louisa  10,OOOZ.  "  payable  and  to  be  paid  to  her  as 
follows-';  5QOOZ.  upon  her  marriage  with  such  consent  as  aforesaid, 
and  5000Z.  within  two  years  next  afterwards."  Louisa  while  an 
infant  and  a  ward  of  the  Court  of  Chancery,  eloped  and  was  married 
in  Scotland  without  the  consent  of  the  trustees.  And  it  was  one 
of  the  questions,  whether,  under  those  circumstances,  Louisa  and 
her  husband  were  entitled  to  the  legacy  of  10,OOOZ.  and  to  have  a 
moiety  of  it  paid  .immediately.  Lord  Rosslyn  determined  in  the 
negative,  declaring  that  the  condition  was  perfectly  legal,  and  that 
Louisa,  in  not  marrying  with  consent,  never  placed  herself  in  a 
situation  to  answer  the  description  of  the  bequest. 

It  is  observable-  in  the  last  case,  that  there  was  no  limitation  over 
of  the  legacy  in  the  event  of  the  legatee  marrying  without  consent, 
and  yet  the  restrictive  condition  was  held  legal  and  binding,  which 
when  once  established,  necessarily  precluded  the  legatee  marrying 
without  consent,  from  taking  any  interest  in  the  bequest,  as  not  an- 
swering the  description  in  the  will  •(./>)  The  two  last  cases  appear 
to  have  decided  thus  far,  that  when  the  condition  requiring  con- 
sent to  the  legatee's  marriage  if  it  take  place  under  twenty-one, 
&c.  is  precedent,  it  is  immaterial  whether  there  be  or  be  not  a  limi- 
tation over  of  the  .legacy  upon  the  marriage  without  consent ;  as  in 
either  case  the*  condition  is  good  and  conclusive  upon  the  legatee. 

It  appears  from  the  case  of  Hemmings  v.  Munckley  before  stated, 
(<?)  that  where  there  is  such  an  executory  bequest  over,  the  condi- 
tion is  valid. 

But  there  does  not  seem  to.be  any  direct  authority  which  esta- 
blishes that  a  mere  simple  condition,  requiring  the  marriage  of  the 
legatee  precedent  to  the  bequest,  is  valid.  There  is  however  a  dic- 
tum of  Sir  Thomas  Plumer,  V.  C.  in  Malcolm  v.  O'  Callaghan,(r) 
that  in  such  an  instance,  if  there  was  no  bequest  over,  the  restriction 
would  be  void.  That  was  the  case  of  a  legacy  made  payable  upon 
marriage  with  the  consent  and  approbation  of  executors,  with  a  limi- 
tation over  upon  a  marriage  without  such  consent.  His  Honour  de- 
termined upon  the  effect  of  the  bequest  over,  that  the  condition  was 
obligatory,  which,  having  been  broken,  the  limitation  over  took  place. 

The  dictum  of  Sir  Thomas  Plumer,  in  the  last  case,  seems  ex- 
posed to  this  objection,  that  the  ancient  rule  of  the  civil  law  after- 
wards became  greatly  restricted,  and  it  was  finally  settled,  that 
conditions  which  did  not  directly  or  indirectly  import  an  absolute 
injunction  to  celibacy  were  good.(s)  Hence  the  preliminary  requi- 
site of  marriage  with  consent  at  any  time,  being  neither  a  general 
nor  a  fraudulent  restraint  upon  marriage,  as  such  conditions  are  not 
void  by  the  Civil  law,  there  appears  to  be  no  reason  why  they  should 
be  so  by  our  own.(£) 

(/O  Ante,  p.  505.  (q\_Ante,  p.  508.  (r)  2  Mad.  349.  353. 

(s)  Swinb.  pt.  4.  sect..  12.    2  Dick.  721. 

(t)  See  Lord  Eldon's  declaration  in  Clarke  v.  Parker,  19  Ves.  15.  D'Aguilar 
v.  Drinkwater,  2  Ves.  &  Bea.  226.  and  Sir  W.  Grants  observations  in  Lloyd  v. 
Branton,  3  Meriv.  116. 


SECT.  I.]  upon  Condition.  511 

In  this  view  of  the  law  upon  the  present  subject,  it  follows,  that, 
if  there  be  two  provisions  for  the  legatee  in  the  same  will,  but  one 
of  them  is  made  to  arise  upon  marriage  generally  with  consent  as  a 
precedent  condition,  the  condition  is  valid  and  must  be  performed, 
whether  there  be  a  limitation  over  of  the  legacy,  or  not.  • 

This  was  so  determined  by  the  Lord  Keeper  in  Creagh  v.  Wil- 
son,(ii)  a  case  in  which  Mr.  Wilson  bequeathed  to  his  grand-daugh- 
ter Elizabeth  200£.  provided  she  continued  with  his  executors  till 
twenty-one;  but  if  she  were  taken  from  them  by  her  father  (a 
Roman  Catholic)  before  she  attained  that  age,  or  "in  case  she 
married  against  the  consent  of.  his  executors,  he  gave  her  only 
10/."  Elizabeth  paid  her  father  a  visit  with  the  assent  of  one  of  the 
executors,  during  her  minority,  who  took  that  opportunity  of  marry- 
ing her  to  a  papist  without  the  executor's  consent.  She  and  her 
husband  obtained  a  decree  at  the  Rolls  for  the  legacy  of  200J.  which 
was  reversed  by  the  Lord  Keeper,  upon  the  principle,  that  the  con- 
dition requiring  consent  being  precedent,  Elizabeth  did  not  answer 
the  description  of  the  bequest. 

So  in  Gillet  v.  Wray,(x)  the  testator  gave  his  grand-daughter  an 
annuity  of  101.  for  life ;  and  by  a  codicil  declared,  that  "  if  she  mar- 
ried with  the  good  liking  of  his  trustees,  then  she  should  have  150i. 
in  lieu  of  the  annuity,  which  was  to  cease."  The  grandrdaughter  • 
married  without  the  required  consent,  and  Lord  Cowper  determined 
that  she  was  not  entitled  to  the  150Z. 

The  cases  upon  these  conditions  cannot  be  expected  to  agree 
since  they  were  adjudged  at  periods  when  the  Courts  paid  more  or 
less  attention  to  the  Civil  code.  We  consequently  find  an  old  case 
of  Hicks  v.  Pendarvis,(y)  on  alternative  bequests,  in  which  Hale, 
C.  J.  decided,  that  the  preceding  condition  requiring  marriage  with 
consent  was  in  terrorem,  and  decreed  the  larger  legacy  to  the  lega- 
tee, although  sh^  married  without  consent :  a  determination  over- 
ruled by  the'  two  more  recent  cases  last  stated. (z] 

Since  the  rigour  of  the  ancient  rule  of  the  Civil  law  was  corrected 
and  moderated  as  before-  stated, (a)  and  conditions  not  absolutely 
prohibiting  marriage  were  allowed  to  be  good, (6)  it  is  a  consequence 
that  conditions,  which  require  or  prohibit  marriages  with  particular 
persons,(c)  or  limit  marriages  to  particular  families,(d)  or  which  pre- 
scribe the  due  ceremonies  and  the  place  of  marriage,  (as  if  the  be- 
quest were  made  to  depend  upon  the  legatee  marrying  in  the  city  of 
York,)(e]  are  valid,  and  must  be  complied  with. 

If  such  be  now  the  settled  validity  of  precedent  conditions  in  re- 
straint of  marriage,  when  the  subject  is  personal  legacy^  a  fortiori, 
the  rule  is  the  same  when  real  estate  is  devised  upon  lift  like  con- 
ditions, or  the  legacy  must  be  paid  out  of  it.  For  at  all  times  these 
conditions  were  binding  by.the  Common  law ;  and  as  the  Ecclesias- 
tical courts  had  no  jurisdiction  over  that  species  of  property,  the 
temporal  courts  were  not  fettered  by  the  adjudications  of  the  former 
tribunals  according  to  the  ancient  rule  of  the  Civil  code.(/) 

(«)  2  Vern.  572.         (*)  1  P.  Will.  284.        (t/)  2  Eq.  Ca.  Abr.  212.  (D.)  pi.  J. 
(z)  And  see  2  Dick.  722.  n    («)  ^te,  p.  508. 

(WseeSwinb.  pt  4.  sect.  l«.fia**im.  (c)  2  Dick.  721.  Perrinv.Lyon,  9  bast. .170. 
V)  1  Bro.  C.  C.  55.         (0  Swjnb.  pt.  4.  sect.  12.  art,  12.     2  Bro .  C.  C.  488. 
(  /)  See  Reynish  v.  Martin,  3  Atk.  330.    Reeves  v.  Herne,  5  Vm.  Abr.  343.  pi. 
41.  and  Harvey  v.  Aston,  1  Atk.  361. 


512  Of  Legacies  [Cn.  XIII. 

Not  only  .conditions,  which  interfered  with  the  liberty  of  marriage, 
were  held  to  be  illegal  and  void  by  the  Civil  law,  as  we  have  seen, 
but  also  conditions  which  had  a  tendency  to  infringe  upon  the 
liberty  of  another,  person's  testamentary  disposition.  The  latter 
conditions  had  the  epithet  of  captious  given  to  them. 

Accordingly,  if  a  legacy  were  given  by  A.  to  B.,  upon  condition 
that  B.  should  leave  A.  the  like  legacy  by  his  testament,  such  con- 
dition would  be  void  by  the  Civil  law,  first,  because  it  is  considered 
as  inconsistent  with  that  freedom  of  will  which  B.  ought  to  possess 
at  the  time  of  making  his  testament;  and  secondly,  because  such 
condition  is  presumed  to  be  clothed  with  artifice,  and  inserted  by 
A.  with  a  view  of  obtaining  undue  advantage  over  B.  So  odious 
are  these  conditions  to  the  Civil  law,  that  they  are  declared  void, 
although  inserted  in  testaments  purely  military,  or  in  the  testaments 
of  fathers  providing  for  their  children,  or  in  testaments  ad  pias 
causas,  and  the  like.  If  however  the  condition  had  no  reference  to 
the  future  act  of  the  legatee,  but  the  terms  of  the  bequest  were  in 
substance  as  follow;  viz.  "I  bequeath  to  A.  10GZ.  if  he  has  bequeath- 
ed to  me  a  like  sum  by  his  will,"  the  condition  would  be  supported, 
as  it  was  apparent  that  'the  condition  did  not  in  the  least  interfere 
with  A, 's  liberty  of  disposition,  and  therefore  the  case  did  not  fall 
within  the  law  of  captious  bequests. (g) 

A  second  class  of  captious  bequests  depending  upon  similar  rea- 
soning is,  when  a  testament  is  said  to  depend  upon  the  will  or  ap- 
pointment of  another  person.  Suppose,  then,  C.  to  bequeath  a 
legacy  of  501.  to  A.  if  B.  will,  or  .to  such  person  as  A.  shall  appoint, 
the  legacies  would  be  void  by  the  Civil  law.(^)  The  first  case  would 
be  so  adjudged  for  this  reason,  viz.  that  ancient  legislators  consider- 
ed, if  testators  were  permitted  to.  refer  -their  testaments- to  the  wills 
of  other  persons  for  effect,  it  would  open  a  spring  for  fraud,  by  put- 
ting it  in  the  power  of  the  person  depended  upon^to  disappoint  the 
person  intended  to  be  benefitted  by  the  testator.  The  second  case 
would  be  adjudged  void,  because,  by  the  Civil  law,  testators  are  not 
invested  with  the  power  to  refer  the  substance  of  their  wills,  to  the 
arbitrium  of  other  persons,  the  power  of  disposition  being  consider- 
ed as  annexed  to  the  person  of.  the  testator,  and  incapable  of  dele- 
gation, except  in  the  particular  cases  mentioned  in  Swinburne. 

Such  being  the  rule. of  the  Civil  law  concerning  bequests,  which 
it  terms  captious,  it  may  be  asked,  whether  courts  of  Equity  have 
adopted  its  reasoning  in  similar  instances  ?  With  regard  to  the  first 
class  of  these  bequestSj  there  does  not  appear  to  be  any  case  in  which 
those  courtsfrfiave  been  called  upon  to  decide  the  precise  question. 
The  reasorfs  given  by  the  Civil  law  for  rejecting  them  are  not  desti- 
tute of  policy  and  wisdom,  and  therefore  entitled  to  respect.  The 
reason,  says  Swinburne,  referring  to  authorities,  why  these  bequests 
are  called  captious,  is,  "  because  the  testator,  imposing  the  condi- 
tion, endeavours  to  catch  or  entrap  the  legatee,  by  inducing  him  to 
give  such  testator  a  legacy  in  case  the  legatee  dies  first,  by  which 
means  also  the  liberty  of  bequeathing,  .which  the  legatee  ought  to 
enjoy,  is  destroyed  ;  and,  as  in  marriages,  the  same  ought  to  be  free, 
not  only  from  the  fear  of  incurring  loss,  but  also  from  the  apprehen- 

(g-)  Swinb.  pt.  4.  sect.  II,  passim.  (h)  Swinb.  pt.  4.  sect.  11.  art.  7. 


SECT.  I.]  upon  Condition.  513 

sion  of  not  obtaining  gain,  so  in  testaments  the  same  ought  to  be 
made  with  all  freedom,  not  only  divested  from  the  fear  of  incurring 
loss,  but  also  without  any  prospect  of  gain  or  reward."  With  due 
deference  to  those  reasons,  it  seems  that  the  law  of  England  allows 
every  person  to  dispose  of  his  property  as  he  chooses,  provided  his 
will  be  not  contrary  to  legal  policy ;  and  fraud  is  never  presumed 
without  proof.  No  solid  objection,  therefore,  arises  to  qualify  this 
liberty,  in  instances  where  two  persons  are  desirous  to  create  by  their 
testaments  a  contingent  benefit,  in  favour  of  the  one,  who  may  hap- 
pen to  survive  the  other,  where  no  deceit  has  been  practised  by  either 
party.  It  seems,  however,  settled,  that  if  two  persons  enter  into  a 
fair  and  definite  agreement  to  leave  each  other  a  sum  of  money,  or 
to  settle  by  their  wills  the  property  of  each  for  the  benefit  of  the 
survivor,  a  court  of  Equity  will  enforce  a  performance  of  such  agree- 
ment, (i)  And  with  respect  to  the  second  class  of  captious  bequests, 
it  should  seem  that  Ji. '6  legacy  would  vest  immediately  upon  B. 
signifying  his  assent ;  and  nothing  is.more  frequent  in  practice,  than 
dispositions  in  trust  for  A.  for  life,  with  a  limitation  after  A?s  death 
to  such  persons  as  he  shall  appoint ;  the  validity  of  which  limitation 
has  never  been  questioned. 
4.  Of  subsequent  conditions. 

A  subsequent  condition  is,  where  any  estate  or  interest  is  so  given 
as  to  vest  immediately  in  the  legatee,  subject  only  to  be  devested  by 
some  act  or  event  at  an  after  period. (A;)  Technical  words  are  not 
required  to  create  such  a  condition  ;  it  will  be  sufficient,  if  the  tes- 
tator appear,  From  the  contents  of  his. will,  to  have  intended  an  im- 
mediate interest  to  pass  to  the  object  of  his  bounty.  In  addition  to 
the  instance  given  in  the  beginning  of  this  chapter  of  a  subsequent 
condition,  the  following  examples  are  produced. 

If  a  legacy  be  given  to  «/?.,  to  be  paid  at  twenty-one,  and  if  he  die 
under  that  age,  then  to  B. ;  the  interest  of./?,  will  vest  immediately 
upon  the  death  of  the  testator,  subject  to  be*  devested  upon  JUs  de- 
mise under  twenty-one.(Z) 

So  in  the  case  of  a  bequest  to  Ji-  generally,  and  if  he  die  "before 
C.)  then  to  D.  The  legacy  will  vest  iny2.  immediately,  Jiable  to  be 
devested  upon  the  happening  of  the  contingency. 

Also,  if  a  legacy  be  given  to  .#.,  payable  at  twenty-one  or  mar- 
riage, but  if  he  marry  under  that  age  without  the  consent  of  execu- 
tors, then  to  C.,  the  legacy  will  vest  immediately  in  A,,  and  the 
condition  is  subsequent.(m) 

It  is  to  be  remarked,  that  although  by  the  Civil  and  Common  laws 
it  is  the  general  rule  that  precedent  cpnditions  must  be  literally  per- 
formed, still  that  rule  is  not  so  rigorous,  at  least  in  the  Civil  law,  as 
not  to  admit  of  exceptions,  when  the  conditional  terms  are  so  far 
complied  with  as  to  fulfil  the  intention  of  testators  in  imposing  the 
conditions.(n)  Whereas,  in  conditions  subsequent,  since  they  are  in 
defeasance  of  interests  already  vested,  courts  of  law  and  equity  are 

(i)  Lord  Walfiolev.  Lord  Orford,  3  Ves,  402.  Hinckleyv.  Simmons,  4  Ves!  160. 

(£)  See  Ughtred's  case,  7  Rep.  10  a. 

(/)  Mcholls  v.  Osborn,  and  Taylor  v.  Johnson,  2  P.  Will.  420.  and  504.  And 
see  ante,  Chap.  X.  sect.  5.  p.  403.  (m)  Garret  v.  Pritty,  2  Vern.  293. 

(n)  Svvinb.  pt.  4.  sect.  7.  art.  4.  Voet  ad  Pand.  lib.  28.  tit.  7.  s.  25.  Cod.  lib.  6. 
tit,  46.  Dig.  lib.  32.  tit  1.  lex.  11.  s,  11. 


514  Of  Legacies  [Cn.  XIII . 

strict  in  requiring  the  very  event  to  happen,  or  the  act  to  be  done, 
with  all  its  particulars,  which  is  to  defeat  the  interest  previously  vest- 
ed. As  this  has  been  shown  in  the  tenth  chapter,(o)  we  shall  pro- 
ceed to  treat — 

SECT.    II.   Of  the  PERFORMANCE  of  Conditions. 

1.  Of  performance,  when  the  conditions  arc  precedent. 

A. — When  the  performance  is  not  within  the  time  mentioned  in 
the  condition. 

Where  a  condition  is  precedent,  it  ought  regularly  to  be  strictly 
performed  in  the  manner  required,  as  before  observed  ;  yet  it  seems, 
that  both  by  the  Civil  law  and  by  our  own,  if  the  testator's  intention 
be  satisfied  by  ah  execution  in  substance,  i.  e.  cy  pres,  the  perform- 
ance will  be  sufficient.  '  The  Civil  law  held,  inconsistently  indeed 
with  its  admitted  exceptions  to  the  general  rule  of  strict  perform- 
ance, and  which  are  hereinafter  noticed,  that  where  IQGl.  was  given 
to  B.  if  he  paid  C.  201.  within  a  certain  period,  and  C.  died  before 
the  time  ;  payment  to  his  executors  upon  the  day  would  be  insuffi- 
cient, (p)  It  seems,  however,  that  the  Common  law  would  not  re- 
quire such  a  literal  performance  of  the  condition,  but  permit  the 
execution  of  it  cy-pres ;  viz.  by  allowing  payment  of  the  50J.  to  C.'s 
executors  to  be  a  good  performance  ;(</}  and  it  is  presumed  that  a 
court  of  equity  would  hold  the  same  doctrine. (r) 

Upon  a  similar  principle  with  that  of  cy  pres  performance,  the 
Civil  law  has  admitted  of  a  very  extensive  limitation  to  its  general 
rule  of  strict  performance  ;  viz.  in  all  cases  where  it  is  apparent 
that  testators  paid  more  regard  to  the  end  or  fulfilmen{  of  the  condi- 
tion than  to  the  means  prescribed  for  the  execution. (*)  So  that, 
if  A.  bequeathed  a  legacy  to  I?.,  in  case  he  erected  a  monument 
for  *#.  within  three  days  after  .fl.'s  death  ;  although  B.  should  not 
literally  comply  with  the  condition,  yet  he  would  be  entitled  to  the 
legacy  upon  building  the  monument  within  a  reasonable  time,  since 
the  erection  would-be  considered  as  the  motive  and  essence  of  the 
bequest,  and  the  time  appointed  for  the  building  but  a  mean  to  ex- 
pedite'the  business.(£)  And  it  is  presumed,  that  courts  of  equity 
would  act  upon  the  same  principle  in  similar  cases. 

Thus- in  Simpson  v.  Pickers, (IL)' Mr.  Simpson  bequeathed  to  his 
brother  Michael  100QZ.,  to  be  paid  within  six  calendar  months  after 
his  (the  testator's)  decease,  upon  his  then  executing  to  the  execu- 
trix a  release  of  all  claims. and  demands  ;  and  if  he  refused  or  de- 
clined to  do  so,  the  testator  revoked  the  bequest,  appointing  his 
sister  Elizabeth  sole  executrix.  It  seems  that  Michael  did  not  give 
the  release  within  the  time  prescribed;  nevertheless  Sir  W.  Grant 
declared  him  to  be  entitled  to  the  legacy,  upon  his  releasing  all 
demands. 

So  in  Taylor  v.  Popham,(x)  Mr.  Taylor  bequeathed  to  his  son 
Paris  two  annuities  of  100/.  and  200Z.  There  being  subsisting  ac- 
counts between  them,  the  testator  gave  to  Paris  GOO/,  a  year,  upon 

(o)  'Ante,  p.  414.  and  see  Jones  v.  Suffolk,  1  Bro.  C.  C.  529.  Jones  v.  Bromley, 
6  Mad.  137.  (fi)  Swinb.  pt.  4  sect,  7.  (?)  Co.  Litt.  205,  b.  (r)  2  P.  Will.  613. 

(s)  Swinb.  pt.  4,  sect.  7.  art.  4.  (0  Swinb.  pt.  4.  sect.  6.  art.  10. 

iu)  14  Ves.  341.  348. 

(x)  1  Bro.  C.  C.  168.  and  see  Franco  v.  Alvares,  3  Atk.  342.  in  which  the  Court 
held  that  the  bill  filed  within  the  time  was  a  sufficient  performance. 


SECT.  II.]  upon  Condition.  515 

condition  that  he  within  three  months  executed  a  release  of  all  de- 
mands on  his  estates,  stating  his  assurance  that  there  was  nothing 
due  to  him  on  those  accounts.  A  release  was  tendered  to  Paris, 
which  improperly  included  the  two  annuities,  and  he  refused  to  ex- 
ecute it.  The  persons  beneficially  interested  under  the  will  insisted 
that,  by  such  refusal,  Paris  had  broken  the  condition  upon  which  he 
was  to  take  the  annuity  of  600Z.  But  he  contended  that  he  was  not 
obliged  to  execute  a  release,  until  the .  accounts  were  taken  and 
settled,  and  the  balance  ascertained.  It  appears,  however,  that  the 
three  months  elapsed,  and  no  release  was  given.  Lord  Thurlow 
determined,  that  the  tendered  release  being  improper,  Paris  was  not 
obliged  to  execute  it.  He  was  also  of  opinion,  that  Paris  was  not 
entitled  to  have  the  accounts  taken,  since  it  appeared  to  have  been 
the  clear  intention  of  the  testator  to  prevent  that  proceeding,  or  to 
•give  any  election  to  Paris. (y)  And  notwithstanding  the  expiration 
of  three  months  mentioned  in  the  condition,  his  Lordship  gave 
liberty  to  Paris  to  execute  a  release,  which  he  having  refused  to  do 
it  was  declared  that  he  was  not  entitled  to  the  600Z.  a  year. 

Such  determinations  as  the  last  upon  precedent  conditions  do  not 
appear  to  be  founded  upon  relief  against  forfeiture,  as  is  generally 
supposed,  but  upon  the  principle  of  their  having  been  substantially 
performed  within -the  meaning  of  the-  testator's  imposing  them. 
When  the  condition  is  precedent,  there  is  nothing  to  forfeit,  since  no 
interest  can  vest  previously  to  the  literal  or  substantial  performance 
of  the  condition.  The  question  in  all  those  cases  appears  to  be, 
have  the  conditions  been  duly  performed  9  In  resolving  such  ques- 
tions, it  is  presumed  that  the  following  distinction  is  material  to  be 
regarded.  When  there  is  no  disposition  upon  non-compliance  with 
the  terms  of  the  condition,  either  in  time  or  collateral  circumstances, 
a  liberal  construction  is  to  be  put  upon  the  performance,  under  au- 
thority of  the  testator's  intention,  inferred  from  the  absence  of  any 
disposition  over,  that  he  meant  the  legatee  to  receive  the  legacy, 
upon  the  condition  being  performed  cy  pres,  or  in  substance,  as  in 
the  preceding  cases.  But  when  there  is  a  limitation  over  of  the  le- 
gacy on  non-compliance  with  its  specific  terms,  the  construction  is 
less  liberal,  a  strict  and  literal  performance  being  required  ;  as  it  is 
presumed,  from  the  disposition  over  of  the  legacy  to  another  person, 
that  the  testator  meant,  if  the  terms  which  he  imposed  were  not  lite- 
rally fulfilled,  the  second  object  of  his  bounty  should  succeed  to  the 
bequest  by  way  of  conditional  limitation.  That  this  is  the  true  prin- 
ciple applicable  to  these  subjects  will  appe.ar,  if  we.  proceed  to  con- 
sider the  cases  establishing  the  proposition. 

That  the  times  appointed  for  performing  conditions  may  be  so 
material  to  be  observed,  as  for  ever  to  prevent  the  title  of  the  lega- 
tees, upon  their  permitting  the  periods  to  elapse  without  a  perform- 
.  ance.     In  illustration  of  this—- 
Suppose  a  condition,  upon  -which  a  bequest  is  made,  depends 
upon  the  legatee  (then  abroad)  returning  to  England  within  three 
years,  and  personally  applying  for  his  legacy.     His  arrival  in  this 
country  within  that  time  is  essential  to  his  title  ;  and  if  he  orhit  to 

(y)  But  Lord  Northington  held  in  Vernonv.  Bethell,  that  the  filing  of  such  a 
bill  for  the  purpose  of  election  was  a  forfeiture,  2  Eden,  110.  114. 


516  Of  Legacies  [Cn.  XIII. 

do  so,  then,  although  he  may  shortly  afterwards  return,  and  for  the 
first  time  receive  notice  of  the  bequest,  arid  upon  that  information 
make  immediate  application  for  the  legacy,  the  defect  in  the  literal 
performance  of  the  condition  cannot  be  remedied  ;  and  for  the  fol- 
lowing reasons.  The  time  allowed'for  performance  is  not,  as  in  the 
instances  before  given,  a  mere  secondary  consideration,  but  it  seems 
to  have  been  in  the  particular  contemplation  of  the  testator  at  the 
date  of  his  will,  and  intended -by  him  to  be  punctually  observed. 
Being  uncertain  whether  the  legatee  was  living,  or  should  be  so  at 
his  death,  and  wishing  to  benefit  him  if  he  happpned  to  be  then  in 
existence;  the  testator,  for  the  convenience  of  his  executor,  might 
have  required  the  personal  appearance  of  the  legatee  within  the 
above  period,  -which  he  considered  a  sufficient  allowance  for  that 
purpose.  A  court  of  equity,  therefore^  cannot  upon  any  rational 
principle  enlarge  the  period  for  claim,  which  the  testator  himself 
thought  proper  to  determine. 

Accordingly,  in  the  case  of  Burgess  v.  Robinson,(z)  the  testator 
bequeathed  200?.  charged  upon  his  real  estate,  to  each  of  his  three 
nephews,  to  be  paid  to  them  as  soon  as  they  arrived  in  England,  or 
claimed  the  same,  provided  the  claim  was  made  within  the  first  three 
years  next  after  his  decease.  And  the  testator  directed,  that  if  only 
two  of  his  nephews  so  arrived  or  made  'their  claims  within  the  above 
period,,  each  of  them  was  to  be  paid  250Z.  ;  but  if  only  one  arrived 
and  claimed  he  was  to  receive  400L  and  the  residue  was  to  be  con- 
sidered part  of  his  (the  testator's)  residuary  estate  ;  so  also  was  to  be 
considered  the  sum  of  500Z.  (part  of  the  three  legacies,)  if  neither 
nephew  arrived  in  England  nor  made  claim  within  the  time  before 
mentioned.  The  testator  then  disposed  of  his  residuary  property. 
None  of  the  nephews  literally  complied  with  the  condition.  And  it 
appeared  that  one  of  them  came  to  England  at  the  end  of  four  years, 
subsequently  to  the  testator's  death ;  -.after  which,  being  informed  for 
the  first  time  of  the  will,  he  claimed  the  benefit  intended  for  him  by 
the  testator.  But  Sir  W.  Grant M.  R. determined  against  his  title; 
observing,  that  the  testator  having  imposed  on  the  legatee  a  condi- 
tion, with  which  he  had  not  complied,  although  the  non-compliance 
was  the  effect  of  the  latter's  ignorance  of  the  provision,  yet  the  con- 
sequence must  be  that  he  was  not  entitled  to  the  legacy. (a) 

In  a  preceding  case,  Lord  Eldon  acted  upon  the  principle  before 
stated,  and  in  conformity  with  the  last  determination,  holding  that 
the  legatee's  arrival  in  England,  and  personally  claiming  the  legacy 
within  the  time  and  in  manner  prescribed  by  the  condition,  could  not 
be  dispensed  with. 

The  case  alluded  to  is  Tulk  v.  Houlditch,(b)  in  which  the  testa- 
tor gave  his  .son  John,  at  Malaga,  in  Spain,  a  specific  legacy  of 
2000Z.  stock,  stating,  that  as  he  Jiad  not  heard  from  John  for  a  con- 
siderable time,  and  the  probability  was  that  he  was  then  dead,  he  • 
therefore  declared  the  legacy  to  be 'given  upon  condition  that  John 
should  not  be  entitled  to  it  unless  he  returned  to  England  and  per- 
sonally claimed  it  from  his  executors  or  administrators,  or  in  the 

(z)  3  Meriv.  7.  1  Mad.  172. 

(a)  Not  so  by  the  Civil  Law.     Swinb.  pt.  4.  sect,  14.  art.  15. 

(£)  1  Ves.  &Bea.248.  259. 


SECT.  II.]  .         upon  Condition.  517 

porch  of  the  parish  church  at  Waltham,  in  the  presence  of  two  wit- 
nesses. The  testator  then  directed,  that  if  Jb^ndid  not  return  and 
make  such  claim  within  seven  years  after  his  decease,  he  should  be 
presumed  to  be  dead,  and  the  legacy  considered  to  be  lapsed,  and 
fall  into  the  residue.  The  executors  were  ordered  to  continue  the 
stock  in  the  bank  for  the  above  period  after  the  testator's  death, 
until  sufficient  proof  was  produced  of  the  demise  of  John,  or  until  it 
should  be  claimed  by  him,  within  the  time,  in  manner  before  re- 
quired. And  the  intermediate  dividends  were  to  accumulate,  which, 
with  the  capital,  were  to  be  paid  to  John,  in  case  he  'claimed  the. 
legacy  in  the  manner  and  within  the  period  before'  stated,  or  the 
whole  was  to  belong  to  the  residuary  legatee.  John  was  living  at 
the  date  of  the  will,  and  did  not  return  to  England,  but  died  at 
Malaga  within  seven  years  from  .the  death  of  the  testator.  He  was 
regularly  informed  of  the  bequest,  and  intended  to  comply  with  its 
terms,  but  was  prevented  by  the  illness  which  occasioned  his  death. 
His  executor  claimed  the  legacy,  contending  that  it  was' meant  for 
John  if  he  happened  to  be  living,  a  fact  which  being  clearly  ascer- 
tained in  the  affirmative,  although  not  in  the  manner  prescribed  by 
the  testator,  the  substantial  part  of  the  condition  was  performed, 
which  entitled  the  personal  representative  of  John  to  the  legacy. 
In  support  of  the  argument,  the  civil  law  was  referred  to;  but  Lord 
Eldon  determined  against  the  claim,  and  said.  "  I  think  this  legacy 
is  not  due  under  the  circumstances.  The  cases  cited  from  the  Civil 
'law  are  distinguished  in  this  respect.  In.  those  cases  where  the 
legacy  was  considered  due,  the  means  by  which  the  party  appeared 
to  be  living  were  not  thought  to  be  essential,  if  the  fact  were  other- 
wise established  it  was  sufficient;  but  there  is  in  this  will  language 
plainly  showing  that  the  testator  did  not  mean  the  legacy  to  be 
taken,  unless  the  fact  that  the  party  was  living  was  pointed  out  by 
the  means  by  which  the  testator  required  that  demonstration.  The 
consequence  is,  that  the  bill  must  be  dismissed  without  costs." 

The  two  cases  of  Simpson  v.  Fickers  and  Taylor  v.  Popham,  be- 
fore mentioned, (c)  are  examples  of  strictly  precedent  conditions, 
and  in  which  the  Court  of  Chancery  considered  the  periods  for  ex- 
ecuting releases  as  merely  ancillary  to  the  accomplishing  of  those 
objects,  and  the  procurement  of  those  instruments  the  end  and  sub- 
stance of  the  conditions.  The  two  other  cases  last  stated  were  de- 
termined upon  particular  circumstances  connected  with  the  times  of 
performance,  and  which  could  not  be  m  the  least  departed  from, 
consistently  with  the  obvious  intention  of  the  testators ;  yet  the  le- 
gacies were  limited  over  upon  non-compliance  with  the  particulars 
enumerated  in  the  conditions,  circumstances  which,  it  is  presumed, 
would  of  themselves,  in  ordinary  cases,  have  procured  similar  de- 
crees in  favour  of  the  second  class  of  legatees.  .However,  the  de- 
cision of  Sir  W.  Grant  in  Simpson  v.  Fickers,  upon  the  will  of  Mrs. 
Simpson,  establishes  the  proposition,  that  in  cases  where  there  is  a 
limitation  over  of  the  legacy  or  devise,  upon  the  legatee  or  devisee 
not  performing  a  condition  within  the  time  prescribed  for  that  pur- 
pose, if  the  terms  be  not  literally  complied  with,  the  condition  will 

(c)  Ante i  p.  514. 
VOL.  i.  3  U 


518  Of  Legacies  [Cn.  XIII. 

be  held  not  to  have  been  performed  within  the  intent  and  meaning 
of  the  testator.  Mrs  Simpson  devised  to  her  brother  Michael  (who 
was  her  heir)  all  her  real  estates,  upon  the  express  condition  that 
he,  within  six  calendar  months  next  after  her  death  did,  at  his  own 
expense,  make  and  execute,  or  deliver,  or  tender  to  her  executor  a 
good  release  for  100GJ.  bequeathed  to  him  by  her  brother  John,  and 
of  all  other  demands  upon  Johns  or  her  estate  on  account  of  her 
ex-ecutorship  under  the  will  of  John.  But  if  Michael  refused  or 
neglected  to  comply  with  the  condition,  she  declared  that  at  the  end 
of  the  six  calendar  months,  the  devise  to  him  should  become  void; 
and  from  that- period  she  devised  her  real  property  to  her  sister 
Sarah,  whom  she  appointed  executrix.  Michael  contested  the  va- 
lidity of  the  will,  a  circumstance  which  he  "brought  forward  in  ex- 
cuse for  his  omission  to  execute  a  .release  within  the  six  calendar 
months  next  after  the  death  of  the  -testatrix.  But  Sarah  (the  de- 
visee over)  contended,  that  as  the  .estates  were  only  devised  to  Mi- 
chael in  the  event  of  his  giving  the  release  within  the  abovg  period, 
and  upon  his  neglect  to  do  so,  then  to  her  (Sarah) ;  she  became 
entitled  to  those  estates  upon  his  non-performance  of  the  condition, 
by  the  express  limitation  of  the  testatrix.  And  so  Sir  W.  Grant 
determined,  and  said  that  the  devise  being  a  conditional  limitation, 
and  not  a  strict  condition,  and  the  event  having  literally  happened 
upon  which  that  limitation  depended,  Sarah  was  entitled  to'  the 
estates.  And  his  Honour  declared,  that  Michael,  not  having  com- 
plied with  the  condition,  of  giving  a  release,  was  not  entitled  to  the- 
benefit  of  the  devise -made  upon  that  conditioned) 

B. — rFrom  what  period  the  time  for  performance  is  to  be  computed. 

In  calculating  the  time  by  months,  when  that  word  is  mentioned 
generally  in  the  condition,  the  computation  is  to  be  made  by  calen- 
dar not  by  lunar  months.(e)'  But  from  the  carelessness  of  legatees, 
it  may  happen  that  they  may  neglect  to  fulfil  the  terms  of  the  con- 
dition, until  it  become  a  question,  whether  they  have  performed  that 
obligation  in  due  time.  The  point  has  arrived  at  that  nicety  as  to 
require  a  decision  whether  the  period  for- computing  the  space  al- 
lowed to  perform,  the  condition  commenced  from  the  day  of  the  tes- 
tator's death,  or  that  day  was  to  be  excluded.  The  rule  is  in  this, 
as  in  other  cases,  that  the  day  of  the.  death  is  inclusive  or  exclusive, 
as  will  best  answer  the  intention  of  the  testator. (/)  An  example 
where  that  day  will  be  considered  exclusive  may  be  thus  given : 

Suppose  a  bequest  to  A.  if  within  six  calendar  months  after  the 
death  of  her  brother,,  she  give  the  security  required  by  the  will,  and 
the  testator  to  die  on  the  12th  of  January  1805,  and  the  security  to 
be. given  on  the  following  12th  of  July.  The  'condition  will  have 
been  performed,  for  the  computation  is  to  be  made  upon  and  from 
the  day  next  after  the  testator's  death.  Such  was  the  case  of  Lester 
v.  Garland,(g]  decided  by  Sir  W.  Grant,  M.  R. ;  and  upon  this 
reasoning.  The  day  is  a  sort  of  indivisible  point,  so.  that  any  act 
done  in  the  compass  of  it  is  no  more  referrible  to  any  one,  than  to 

(rf)  14Ves.  341.  and  see  Lor&Eeaulieu  v.  Lord  Cardigan,  Ambl.  533.  Report- 
ed 1  Eden,  349,  and  commented  upon  by  Sir  W.  Grant,  in  the  last  case  p.  347. 
(0  3  Atk.  346.  (/;  «  Law  Of  Husband  and  Wife, "  vol.  1.  p.  99. 

()  15  Ves.  248. 


SECT.  II.]  upon  Condition.  519 

any  other  portion  of  it ;  but  the  act  and  the  day  are  co-extensive, 
and  therefore  the  act  cannot  properly  be  said  to  be  passed  until  the 
day  is  passed.  Such  is  the  technical  rule.  That  rule  then  forbid- 
ding, in  the  present  case,  the  hour  of  the  testator's  death  to  be  con- 
sidered as  the  time  of  it,  since  that  would  be  making  a  fraction  of  a 
day,  it  follows  that  the  day  of  the  death  must  be  the  time  of  it,  and 
that  time  must  be  past  before  the  six  months  can  begin  to  run,  which 
makes  the  commencement  of  the  period  the  day  following  the  death 
of  the  testator. 

—When  the  legatee  has  the  whole  of  his  life  to  perform  the 
condition. 

When  no  period  is  appointed  by  the  testator  for  performance  of  a 
condition,  the  legatee  will,  in  general,  have  the  whole  of  his  life  to 
fulfil  the  terms  of  it.  In  this  the  Civil  law  and  the  rule  in  equity 
coincide,  so  that  if  a  legacy  be  given  to  Jl.  if  he  pay  101.  to  the  poor 
of  a  particular  place,  A.  will  be  allowed  by  the  Civil  law  the  whole 
of  his  life  to  make  the  payment  ;(/t)  and  an  instance  where  a  court  of 
equity  made  a  similar  decision  occurred  in  the  following  case  : 

In  Randal  v.  Payne,(i)  Mr.  Walsh,  after  giving  legacies  to  Jane 
and  Martha  Wood,  declared,  that  if  either  of  them  married  into  the 
families  of  Gosling  or  Rivington  and  had  a  son,  he  gave  all  his  es- 
tate to  such  son  for  life,  &c.  but  if  they  should  not  marry,  the  estate 
was  to  go  the  plaintiff  for  life,  &c.  The  Woods  married,  but  not 
into  the  families  before  named,  and  the  question  was,  whether,  upon 
such  marriages,  the  plaintiff  had  not  a  right  to  the  estate1]  Lord 
Thurlow  determined  in  the  negafive,  on  the  principle  that  nothing 
could  vest  in  the  plaintiff  until  the  contingency  of  the  Woods  not 
marrying  into  the  particular  families  became  impossible,  which  could 
not  be  decided  during  their  lives,  for  while  they  lived,  there  was  a 
possibility  of  their  performiVig  the  condition;  consequently  the  claim 
of  the  plaintiff  was  premature. (k) 

In  the  last  case  it  was  obviously  the  intention  of  the  testator,  that 
if  either  daughter  married  into  the  families  of  Gosling  or  Rivington 
arid  had  a  son,  that  son  was  to  have  all  his  estates ;  a  circumstance 
which  showed  his  intention,  that  those  estates  were  not  to  go  over, 
while  the  happening  .of  the  above  event  was  possible,  and  which 
therefore  necessarily  continued  during  the  lives  of  each  daughter ; 
so  that  although  the  daughters  might  marry  into  other  families  than 
those  prescribed,  as  was  the'  case,  yet  as  their  husbands  might  die 
and  one  of  the  widows  marry  into  one  of  the  families  pointed  out 
by  the  testator,  and  have  a  son,  the  first  marriages  were  not  allowed 
to  be  a  determination  of  the  condition,  so  as  to  entitle  the  person 
in  remainder  to  the  estates  upon  those  events  taking  place. 

But  when  it  appears  to  have  been  the  testator's  intention,  that 
the  condition  should  be  restricted  .to  the  first  marriage  of  the  lega- 
tee, that  intention  will  prevail,  as  in  the  following  case  : 

Mr.  Lowe,  after  devising  all  his  real  estates  to  trustees,  bequeath- 
ed a  portion  of  10,000/.  to  his  daughter  Charlotte,  one  half  of  it,  to 
be  paid  upon  her  marriage,  and  the  remainder  in  one  year  after- 
wards, on  condition  of  her  marrying  with  the  consent  of  any  two 

(A)  Swinb,  pt.  4.  sect.  14  art.  11.  (i)  1  Bra  C.  C.  55, 

(£)  See  Page  v.  Hayivard,  2  Salk.  570. 8vo.  ed. 


520  Of  Legacies  [Cn.  XIII. 

of  his  executors,  &c.  But  if  she  married  without  such  consent, 
one  of  his  three  kinsmen,  William,  Thomas,  or  John  Drury,  he 
gave  to  that  one  kinsman  particular  estates  upon  his  taking  the 
name  of  "Lowe,"  and  if  that  circumstance  did  not  take  place  with 
Charlotte,  he  directed  it  to  be  offered  to  his  daughter  Jinn  in  every 
particular ;  and  if  neither  daughter  married  as  aforesaid,  he  gave 
the  estates  to  his  kinsman  //  illiam  Drury  and  his  heirs  male  for 
ever,  upon  his  and  their  taking  the  name  of  "  Lowe."  Charlotte 
married,  with  the  consent  of  the  testator,  a  person  not  one  of  the 
three  kinsmen  named  in  the  will,  and -she  received  a  marriage  por- 
tion, and  then  the  testator  made  a  codicil  and  revoked  all  the  de- 
vises and  bequests  in  his  will,  in  favour  of  Charlotte,  and  all  the 
claim  and  right  which  her  husband  might  have  to  any  of  the  testa- 
tor's real  or  personal  estates,  in  consequence  of  the  marriage.  An 
act  which  showed  the  testator  intended,  that  the  condition  of  either 
of  his  daughters,  marrying  one  of  his  three  kinsmen,  was  to  be  con- 
fined to  their  first  marriages  ;  for  in  lieu  of  such  claim  and  right, 
the  testator  gave'  to  each  child  of  the  husband  by  his  daughter  (ex- 
cept an  eldest  or  only  son)  a  pecuniary  legacy.  And  by  the  same 
codicil  the  testator  declared,  that  if  his  daughter  Ann  married  any 
of  the  three  persons  named  in  his  will,  then,  on  condition  that  such 
person  and  his  heirs  should  take  and  use  the  name  of  Lowe  only, 
such  person  should  be  entitled  to--  all  his  real  and  personal  estates 
absolutely.  But  if  his  daughter  Ann  should  not  marry  any  of  those 
persons,  or  marrying  one  of  them  he  refused  to  take  and  use  the 
name  of  Lowe,  the  testator  revoked  all  the  devises  and  bequests  he 
had  made  to  Ann,  and  gave  to  her  10,000/.  Ann,  after  surviving 
the  testator,  married,  but  not  one.  of  the  three  kinsmen  of  the  testa- 
.  tor,  and  on  that  occasion  she.  was  paid  the  10,000/. ;  and  although 
it  was  urged  that  her  husband  might  die  and  she  afterwards  marry 
one  of  those  three  persons,  yet  the  Court  of  King's  Bench  was  of 
opinion,  that  the  remainder  over  to  the .  plaintiff  Drury  (who  had 
taken  the  name  of  Lowe")  irrevocably  took  place. (/) 

D. — Right  of  executors  to  perform  the  condition. 

Where  the  condition  gives  an  .option  to  the  legatee  to  perform 
one  of  two  or  more  things,  within  a  particular  period,  previously 
to  the  vesting  of  the  bequest,  if  the  legatee  die  before  the  expira- 
tion of  the  time  without  having  elected,  the  right  of  election  may 
be  exercised  by  his  executors. 

Accordingly  in  Eastwood  v.  Vinke,(m]  the  testator  upon  his 
marriage  gave  a  bond  to  his  wife's  trustee,  with  a  condition,  that  if 
he,  within  four  months,  settled  and  assured  freehold  lands  of  the 
yearly  value  of  100Z.  upon  his  wife  for  life,  or  if  his  heirs,  executors, 
or  administrators  should,  within  the  same  period  after  his  death, 
pay  to  her  2000Z.  the  bond  was  to  be  void.  The  testator  died 
within  the  four  months  without  making  such  settlement  and  the 
widow  claimed  the-  2000/.  but  it  was  contended  against  her  de- 
mand, that  as  the  testator  died  within  the  period  allowed  for  his 
election,  that  right  devolved  upon  his  executors.  And  the  Master 
of  the  Rolls  was  of  that  opinion,  ordering  the  executors  to  pay  the 
incoming  profits  of  the  100Z.  per  annum  to  the  widow  from  the 

(0  Lowe  v.  Sir  William  Manners,  5  Barn.  &  Aid.  917.     (m)  2  P.  Will.  613.  617. 


SECT.  II.]  upon  Condition.  521 

death  of  her  husband,  and  to  settle  upon  her  that  annual  sum,  and 
he  declared  them  not  to  be  bound  to  pay  her  the  2QOOZ. 

Another  instance,  where  executors  will  be  entitled  to  perform 
the  condition  omitted  to  be  executed  by  their  testator,  the  legatee, 
may  occur  under  the  following  circumstances  : 

Suppose  A.  bequeathed  to  B.  IOC/,  upon  condition  that  he  and 
his  executors  dispose  of  certain  goods.  Now,  as.  B.  can  have  no 
executor  while  he  lives,  the  latter  member  of  the  condition  was  im- 
possible. The  condition,  therefore,  must  be  considered  in  the  dis- 
junctive, so  as  to  enable  B.  during  life,  or  his  executors  afterwards, 
to  perform  the  condition. (n)  • 

E. — Where  legacies  are  given  to  executors  or  trustees. 

When  bequests  are  made  to  individuals,  in  the  character  of  trus- 
tees or  executors,  and  not  as  marks  of  personal  regard  only,  the 
legacies  are  held  to  be  given  upon  an  implied  condition,  viz.  that 
the  persons  named  clothe  themselves  with  the  character  in  respect 
of  which  the  benefits  were  intended  for  them.  Thus  a  trustee  must 
except  the  trusts,  when  called  upon  to  act  in  their  execution  :(o) 
and  no  rule  is  so  clear,  as  that  if  a  legacy  be  given  to  a  man  as 
executor,  whether  it  be  expressed  for  care  and  pains  or  not,  he  must, 
for  the  purpose  of  entitling  himself  -to  the  bequest,  invest  himself 
with  the  character  of  executor.(/>)  'If  he  prove  the  will  with 
an  intention  to  act  under  it,  that  will  be  a  performance  of  the  con- 
dition ;  or  if  he  unequivocally  manifest-  an  intention  to  act  in  the 
executorship,  as  in  .giving  directions  about  the  funeral  of  the  testa- 
tor, and  be  prevented  byi  death  from  further  entering  upon  his 
office,  that  also  will'  be  a  performance  of  the  condition. 

Accordingly  in  Harrison  v.  Rowley,(q]  Mrs.  Jllsager  bequeathed 
to  her  executors  and  trustees,  100Z.  a-piece,  for  their  care  and  loss 
of  time  in  the  execution  of  the  trusts,  together  with  their  reasonable 
expenses,  when  called  from  home  on  that  account.  Judith,  the  sis- 
ter of  Mrs.  Msager,  made  a  testamentary  disposition  to  the  same 
effect,  as  that  just  mentioned,  and  appointed  the  same  persons  her 
executors.  John  Ford,  one  of  the  executors  and  trustees,  survived 
the  testatrixes  so  short  a  time,  that  he  was  prevented  from  joining 
with  his  co-executors  in  proving  the  wills,  bnt  he  concurred  with 
them  in  giving  orders  respecting  the  funeral  of  Mrs.  Msager,  and  he 
acted  in  the  trusts  of  both  wills,  in  directing  payment  of  burial  fees, 
the  expenses  of  making  the  coffins  and  opening  the  vault.  Under 
those  circumstances,  the  executors  of  Ford  claimed  the  legacies 
under  each  will ;  atid  Lord  MvaqJ,ey,  M.  R.  determined  in  'their 
favour,  upon  the  principle,  that  Ford  showed  as  much  as  any  person 
could  do,  his  intention  to  undertake  the  trusts,  and  that  his  being 
prevented  by  death  from  executing  them  ought  not  to  prejudice  his 
title  to  the  legacies. 

Also  in  Humberston  v.  Huw,berston,(r)  the  testator,  as  encourage- 
ment to  his  executors  to  accept  the  trus.t  and  executorship,  gave  to 
each  of  them  10CZ.,  and  121.  a-piece  for  mourning  and  rings,  and  ]()/. 
a  year  for  their  trouble.  The  executors  did  not  act;  and  Lord 
Cowper  was  of  opinion,  that  they  were  entitled  to  the  rings  and  . 
mourning  as  personal  gifts,  but  not  to  the  annuity  or'  legacy  of  100/. 

Cn)  2 Roll.  Abr.  450.  pi.  11.        (o)  See  Brydgesv.  Wotton,  1  Ves.  &  Bea.  134. 
</0  4  Ves.  216.         •  (y)  Ibid.  212.  (r)  1  P.  Will.  333. 


522  Of  Legacies  [On.  XIII. 

The  conduct  of  an  executor,  after  proving  the  will,  may  be  of  such 
a  kind  as  to  demonstrate  that,  instead  of  a  bona  fide  intention  to 
execute  the  trusts,  he  procured  probate  as  a  mean  of  enabling  him 
to  violate,  in  the  grossest  manner,  the  confidence  reposed  in  him  by 
the  testator.  In  such  a  case,  the  mere  act  of  proving  the  will  cannot 
entitle  him  to  the  legacy  meant  for  him. 

In  Harford  v.  Browning,(s)  Mr.  JMorris  (one  of  four  executors) 
had  a  legacy  of  150GJ.,  and  an  annuity  of  100/.  given  to  him  by  the 
testator,  upon  proving  the  will,  and  taking  on  himself  the  execution 
of  it.  Morris  concurred  in  the  probate,  and  shortly  afterwards 
eloped  with  and  married  abroad  Frances,  the  infant  daughter  of  the 
testator,  who  was  beneficially  interested  under  the  will.  With  the 
exception  of  probate,  Morris  never  acted  as  executor,  and,  in  conse- 
quence of  his  misconduct,  he  was  restrained  by  the  Court  of  Chan- 
cery from  interfering  in  the  trusts  of  the  will.  And  Lord  Thurlow 
determined,  that  Morris's  concurrence  in  the  probate  under  those 
circumstances,  did  not  entitle  him  either  to  the  legacy  or  the  annuity. 

Bequests  to  individuals,  who  are  executors,  are  considered  primd 
facie  to  be  given  to  them  in  that  character ;  a  presumption  to  be  re- 
pelled by  the  nature  of  the  legacies,  or  other  circumstances  arising 
in  the  will.  And  when  it  is  once  settled,  that  the  bequests  are  made 
to  them  as  executors ;  if  they  renounce  the  trusts,  refuse  to  act  or 
are  guilty  of  culpable  neglect  in  not  undertaking  the  executor- 
ship,  (t)  and  die  before  taking  upon  themselves  the  trusts,  the  condi- 
tion upon  which  the  legacies  are  given  being  not  performed,  they 
cannot  be  claimed. 

In  Read  v.  Devaynes,(u)  legacies  were  given  to  persons  by  the 
description  of  "  my  very  good  friends  ;"  who,  in  another  part  of  the 
will  were  desired  "to  act  as  executors."  A  Mr.  Smith,  one  of  those 
persons,  said  in  his  answer,  that  he  had  not  proved  the  will  nor  act- 
ed as  executor,  but  he,  notwithstanding,  claimed  the  legacy.  The 
Master  of  the  Rolls  declared,  that  an  executor  so  appointed  could 
not  claim  the  legacy,  without  acting,  or  at  least  without  having 
proved  the  will. 

So  in  Jlbbot  v.  Massie,(x)  the  bequest  was  of  50Z.  to  Mr.  Massie, 
and  W..  G.  "as  executors;  W.  G.  refused  to  act,  but  claimed  the 
legacy.  And  Lord  Rosslyn  said,  "  as  to  the  50J.  it  is  impossible  it 
can  be  allowed,  because  it  is  given  to  him  as  executor,  and  he  did 
not  prove  the  will." 

Also  in  Stackpoole  v.  Howell,(y)  the  testator  devised  his  real  and 
personal  estates  to  the  plaintiff  and  the  defendaAts  Howell  and  Mab- 
berley,  upon  various  trusts,  and  appointed  them  executors.  This 
testator  made  two  codicils,  by  which  he  gave  to  those  three  persons 
legacies,  not  expressly  as  trustees  or  executors,  but  by  their  names 
and  descriptions ;  and  the  legacies  by  the  first  codicil  were  classed 
together,  and  of  equal  amounts,  as  were  those  -in  the  second.  The 
plaintiff  renounced  probate,  and  he  nevertheless  claimed  the  lega- 
cies, but  without  success.  Sir  W,  Grant  said,  the  question  was, 
whether  it  was  not  necessary  to  find  circumstances  to  show,  that  the 

(«)  1  Cox,  302.  (r)  4  Ves.  216.  (K)  5  Bro.  C,  C.  95. 

(x)  3  Ves,  148.  (y)  IS  Ves.  417. 


SECT.  II.]  upon  Condition  523 

legacy  was  intended  for  the  executor  in  a  distinct  character  ?  other- 
wise it  was  the  jtrima  fade  presumption,  that  it  was  given  to  him  as 
executor.  His  Honour  remarked,  that  there  was  something  in  the 
circumstances,  that  the  testator  had  put  those  legacies  together,  and 
that,  in  both  the  codicils,  the  legacies  to  the  executors  were  pre- 
cisely of  the  same  amount.  It  seemed  to  him,  as  if  the  testator  con- 
sidered the  legatees  in  the  character  of  executors,  and  he  therefore 
thought  the  plaintiff  was  not  entitled. 

The  recent  case  of  Dix  V.  Reid,(z)  is  an  instance,  wherein  the  le- 
gacy was  considered  not  to  be  given  to  trie  legatee  in  his  character 
of  executor ;  and  accordingly,  he  was  decreed  entitled  to  the  lega- 
cy, notwithstanding  his  renunciation  of  probate.  In  that,  case,  a 
testator  bequeathed  thus  :  "  I  give  to  William  Reid  and  John  Bang- 
ley  5QL  each,  whom  I  nominate  and  appoint  executors  in  trust  to 
this  my  will  :  the  said,  bequests  to  be  upon  condition  of  their  taking 
upon  them  the  trusts  hereinafter  mentioned."  In  a  subsequent  part 
of  the  will,  the  testator  added,  "  I  give  unto  my  cousin  Thomas  King 
the  sum  of  oCl.  whom  I  appoint  as  joint  executor  in  trust  in  this  my 
will."  Reid  and  Bawglcy  proved  the  will :  but  King  declined  prov- 
ing it,  and  did  not  interfere  in  the  trusts.  It  was  insisted  he  was 
not  entitled  to  the  legacy  of  5(JZ.  The  Master  reported  the  legacy 
to  be  due,  but  an  exception  was  taken  to  the  report.  And  Sir  John 
Leach,  V.  C.  over-ruled  the  exception,  observing,  that  he  considered 
the  gift  rather  intended  in  respect  of  the  legatee's  relationship,  than 
of  his  office.  The  circumstance  that  the  two  other  executors  had 
the  same  legacies  could  not  be  brought  in  aid  of  the  exception,  be- 
cause those  legacies  were  expressly  annexed  to  the  office  of  trustee?. 
His  Honour,  however,  considered  the  case  as  very  doubtful.  Primd 
facie  legacies  to  executors  were  considered  as  annexed  to  the  office, 
and  they  were  to  show  circumstances  to  repel  the  presumption. 

With  respect  to  precedent  conditions  in  restraint  of  marriage, 
their  performance  in  connexion  with,  subsequent  conditions  of  the 
same  kind  will  be  separately  treated  of  under  the  third  subdivision 
of  this  section. 

We  shall  next  consider, — 

2.  The  performance  of  conditions  which  are  subsequent. 

Those  conditions  are  construed  with  great  strictness,  as  they  are 
intended  to  divest  estates  already  vested.  It  is,  therefore,  required, 
as  previously  observed,  for  the  very  event  to  happen,  or  the  act  to 
be  done  with  all  its  details,  in  order  to  deprive  the  legatee  of  his  le- 
gacy.(a) 

A. — It  is  a  consequence  from  this  rule  of  construction,  that  if  the 
subsequent  condition  tannot  be  performed  from  being  impossible  or 
illegal,  the  condition  is  void,  and  the  legacy  single  and  absolute.(ft) 

Accordingly,  in  the  case  of  Sir  James  Lowther  v.  Lord  Charles 
Cavendish,(c]  the  testator,  after  settling  his  real  estates  in  Cumber- 
land on  the  plaintiff  in  tail,  expressed  a  desire  that  his  burgage  tenures 
in  Cockermouth  should  be  limited  in  the  like  manner.  He  there- 
fore devised  them  to  Sir  William  Lowther  in  fee.  The  testator  then 
signified  his  opinion,  that  it  would  be  fight  for  the  plaintiff  to  have 

(z)  1  Sim.  &  Stu.  237.  00  See  ante,  p.  414.  et.  seq. 

($)  Co.  Litt.  206.     Plowd.  Com.  132.  (c)  Ambl.  356.     1  Eden,  99.  S.  C. 


524  Of  Legacies  [CH.  XIII. 

all  the  estates  of  Sir  William  in  Cumberland,  and  for  the  latter  to 
have  all  the  plaintiff's  estates  in  Yorkshire.  In  order  to  accomplish 
that  purpose,  the  testator  gave  30,000?.  stock  to  trustees,  in  trust  for 
the  plaintiff  to  receive  the  dividends,  until  Sir  William  conveyed  to 
him  in  fee  all  the  Cumberland  estates,  and  the  plaintiff  had  made 
over  the  Yorkshire  estates  to  Sir  William;  which,  if  either  of  them 
refused  or  neglected  to  do  within  eight  months  after  the  plaintiff 
came  of  age,  such  person  should  not  have  any  part  of  the  stock  ;  but 
if  the  exchange  were  completed  by  both  of  them,  that  fund  was  to 
be  divided  between  them ;  and  he  appointed  Sir  William  sole  ex- 
ecutor and  residuary  legatee.  Sir  William  died  before  the  exchange 
could  be  made,  in  consequence  of  the  infancy  of  the  plaintiff;  and 
the  defendant,  the  executor  and  residuary  legatee  of  Sir  William, 
claimed  the  30,OOOZ.  upon  the  ground,  that  in  the  event  which  had 
happened,  the  fund  was  undisposed  of,  and  formed  part  of  the  resi- 
due bequeathed  to  Sir  William,  On  the -other  hand,  the  plaintiff 
claimed  the  stock,  upon  the  principle,  that  he  took  a  vested  interest 
in  it  at  the  testator's  death,  only  to.  be  devested  upon  his  neglect  or 
refusal  to  concur  in  the  exchange,  neither  of  which  circumstances 
could  be  imputed  to  him.  And,  since  the  exchange  had  become 
impossible  by  the  act  of  God,  the  bequest  to  him,  which  was  origi- 
nally qualified,  became  single  and  absolute.  And  of  that  opinion 
was  Lord  Northington,  C.  and  directed  accordingly. (d) 

B. — There  is  a  species  of  illegal  conditions  termed  repugnant. 
They  are  so  called  from  their  inconsistency  with  the  interest  of  lega- 
tees in  the  subjects  of  bequest,  i.  e.  from  the  imposition  of  restraints 
incompatible  with  the  enjoyment  of  the  legacies  in  so  large  and  am- 
ple a  manner  as  the  law  allows,  when  dispositions  are  so  made. 
This  may  happen,  where  the  condition  restrains  a  legatee  from  spend- 
ing or  disposing  of  his  legacy.,  when  his  interest  in  it  is  absolute. 
Such  condition  -being  void,  the  observance  of  it  is  unnecessary. (e) 
The  following  is  an  example  of  this  class  of  conditions  : 

In  Bradley  v.  ,Peixoto,(f)  the  testator  bequeathed  to  his  son 
Henry  Bradley  the -dividends  of  1620Z.  bank  stock  for  his  support 
during  life;  and  at  his 'death  the  principal  and  interest  where  given 
to  his  "  heirs,  executors,  administrators,  and  assigns."  But  if  he  at- 
tempted to  dispose  of  all  or  any  part  of  the  stock,  such  attempt  should 
exclude  him  from  any  benefit  under  the  will,  and  be  a  forfeiture,  and 
the  fund  should  go  to  the  testator's  other  children.  Henry  claimed 
the  legacy  discharged  from  the  condition,  upon  the  ground,  that 
the  restriction  was  repugnant  to  the  absolute  interest  which  he  took 
in  the  fund.  And  Lord  Mvanley,  M.  R.  was  of  that  opinion  ;  ob- 
serving, "  it  was  a  rule  long  established,  that,*  where  there  is  a  gift 
with  a  condition  inconsistent  with  and  repugnant  to  such  gift,  the 
condition  is  wholly  void. 

It  is  stated  at  the  conclusion  of  the  report  of  .the  last  case,  that, 
upon  a  similar  disposition  of  stock  by  the  same  .will  the  Lord  Chan- 

(d)  SeeKeates  v.  Burton,  14  Ves,  434.  stated  ante,  p.  416.  S.  P.  also  Aislabie  v. 
Rice,  3  Mad.  256.  stated  infra. 

(e)  With  respect  to  conditions  of  this  description,  see  Co.  Litt.  146.  206.  222. 
223.     Mildmay's  case  6  Rep.  43.   Hob.  170.     Stiailard  v.  Baker,  Cro.  Eliz.  744. 
Portington's  case,  10  Rep.  38.   Gulliver  v.  Ashby,  4  Burr.  1929.  King  v.  Burchell, 
AmbL  382,     1  Eden,  434.  S.  C.  8  Term.  Rep.  61.  (/)  SVes.  324. 


SECT.  II.]  upon  Condition.  525 

cellar  was  of  opinion  that  the  interest. was  absolute,  and  decreed  ac- 
cordingly. 

A  prohibition  annexed  to  an  absolute  bequest,  against  the  lega- 
tee's spending  the  money,  is  equally  repugnant  to  his  interest  in 
it,  as  a  general  restraint  against  alienation.  The  condition,  there- 
fore, is  void,  and  a  forfeiture  will  not  be  incurred  by  non-compli- 
ance with  it. 

So  also^  if  the  absolute  estate  of  the  legatee  be  made  defeasi- 
ble, upon  hrs  not  disposing  of  the  fund  during  life,  the  condition 
will  be  repugnant  to  the  interest  previously  given  and  vested  in 
him.  For  where  absolute  property  is  once  given  to  an  individual, 
it  cannot  be  subjected  during  his  life  to  a  condition,  that  if  he  do 
not  use  or  dispose  of  it,  his  interest  shall  cease,  and  go  over  to 
another  person. 

In  Ross  v.  Ross,(g]  the  testator  gave  to  his  son  James  Ross  20001. 
to  be.  paid,  to  him  at  the  age  of  twenty-five,  or  at  any  time  between 
the  ages  of  twenty-one  and  twenty-five,  if  his  executors  thought 
proper ;  the  intermediate  interest  to  be  applied  for  James's  support 
and  education.  But  if  James  should  not  receive  or  dispose  by  will 
or  otherwise,  in  his  lifetime,  of  the  money,  it  should  return  and  be 
paid  to  the  heir  in  tail  for  the  time  being  in  possession  of  a  par- 
ticular estate.  James,  after  surviving  the  testator  and  attaining  the 
age  of  twenty-five,  died  intestate,  not  having  received  the  2000Z. 
And  Sir  Thomas  Plumer,  M.  R.  was  of  opinion,  that  the  condition 
or  proviso  was  repugnant  and  void  ;  an  opinion,  which  procured  a 
decree  for  the  legacy  in  favour  of  the  administrator  of  James,  in 
preference  to  the  heir  in  tail,  the  legatee  over. 

It  will  have  been,  noticed  in  the  perusal  of  the  last  cases,  that 
they  prove,  where  the  "conditions  are  subsequent,  and  either  impos- 
sible or  illegal,  although  there  be  a  limitation  over  of  the  legacies 
upon  non-compliance  with  the  terms,  still  the  interests  or  the 
original  legatees  remain  undisturbed  and  absolute  ;  the  bequests 
beinor  considered  the  same  as  if  no  such  conditions  had  been  an- 

O 

nexed.(A) 

It  is  presumed,  upon  the  principle  of  the  last  cases,  that  if  a  lega- 
cy were  given  to  A.  for  life,  with  a  proviso  for  its  determination  if 
A.  made  any  disposition  of  his  life  interest,  the  condition  would  be 
repugnant  and  void.  For  to  such  an  estate  ihejus  disponendi  is  in- 
cident by  law,  and  cannot  be  totally  for  bidden,  (i) 

The  decision  before  considered  being  founded  upon  the  incon- 
sistency between  the  property  in  the  subject  bequeathed  to  the 
legatee,-  and  the  qualifications  and  restraints  attempted  to  be  an- 
nexed to  it,  it  follows,  that  a  condition,  restraining  the  disposal  of 
a  legacy,  will  be  good,  when  the  gift  and  restraint  are  not  repug- 
nant. 

Suppose,  then,  a  bequest  to  A.,  either  absolutely  6r  for  life,  but  if 
he  dispose  of  his  interest  to  a  particular  person,  the  bequest  to  him 
shall  cease,  or  the  property  shall  go  to  B.  The  condition  is  valid ; 
for  it  does  not  prohibit  A.  from  making  any  disposition  of  his  interest, 

(r)  Uac.  &  Walk.  154. 

(/>)  And  see  Co.  Lit.  206.  223.  see  also  Poor  v.  Mial,  6  Mad.  32. 
(i)  18  Ves.  433.     1  Rose,  99. 
VOL.  i.  3  X 


526  Of  Legacies  [Cn.  XIII. 

but  merely  imposes  a  partial  restraint  upon  him,  which  may  be  equit- 
able and  proper. (k)  Upon  the  same  principle,  if  a  legacy  were 
given  to  B.,  to  be  paid  at  twenty-five,  provided,  if  he  aliened  the 
same  before  that  age,  his  interest  should  cease,  and  go  over  to  C.  ; 
the  condition  is  good  ;  and  if  not  observed,  C.  will  be  entitled  to  the 
money.  (I) 

So,  when  it  appears  that  the  proviso  against  alienation  by  a  lega- 
tee for  life  was  not  meant  to  operate  as  a  strict  condition,  in  deroga- 
tion of  the  legal  powers  and  incidents  to  that  estate,  but  as  a  con- 
ditional limitation, (m)  determining  his  interest,  and  giving  it  to 
another  person  upon  alienation  ;  in  that  case,  if  the  legatee  do  not 
comply  with  the  terms  of  the  bequest,  his  interest  will  cease,  and  go 
over  as  directed  by  the  will.  Lord  Eldon  expressed  himself  on  this 
subject  to  the  following  effect :  "  If  property  be  given  to  a  man  for 
life,  the  donor  cannot  take  away  the  incidents  of  a  life  estate.  A 
disposition  to  a  man,  until  he  shall  become  a  bankrupt,,  and  after 
bankruptcy  over,  is  quite  different  from  an  attempt  to  give  to  him 
for  his  life,  with  a  proviso  that  he  shall  not  sell  or  alien  it.  If  that 
condition  be  so  expressed,  as  to  amount  to  a  limitation,  reducing  the 
interest  short  of  a  life-estate,  neither  the  man  nor  his  assignees  can 
have  it  beyond  the  period  limited. "(w) 

The  above  sound  distinction  between  condition  and  limitation 
appears  to  reconcile  all  the  authorities  relating  to  testamentary  ques- 
tions upon  this  subject.  Whether  the  restriction  be  condition  or 
limitation  must  be  decided  by  the  intention  of  a  testator,  as  collect- 
ed from  his  will.(o)  And  it  should  seem,  that  if  the  restraint  be  a 
condition,  then,  since  a  condition  not  to  alien  is  repugnant  and  void, 
the  bankruptcy  of  the  legatee,  any  more  than  his  own  particular 
disposition,  cannot  be  a  forfeiture.  On  the  other  hand,  if  the  re- 
striction be  a  limitation;  then,  whether  the  alienation  be  by  the  act 
of  the  party,(j>)  or  by  operation  of  law,  as  in  consequence  of  bank- 
ruptcy, the  interest  will  determine.  In  truth,  there  seems  to  be  no 
foundation  for  the  distinction  said  to  exist  in  some  of  the  cases,  be- 
tween the  voluntary  alienation  of  the  legatee  being  a  forfeiture,  and 
the  disposition  by  act  of  law  being  no  forfeiture  ;  for  in  each  in- 
stance, the  legatee  is  the  author  of  the  alienation  intended  to  be  pre- 
vented by  the  testator,  by  whatever  means  effected.  In  the  one 
case,  it  is  occasioned  by  his  own  direct  and  immediate  act ;  and  in 
the  other,  by  involving  himself  in  debt,  which  gives  rise  to  the  dis- 
position of  his  interest  by  act  and  operation  of  law.  Hence  it  seems 
fair  to  conclude,  that,  where  the  interest  bequeathed  to  a  person  is 
made  to  cease  upon  his  alienation,  not  as  a  condition  annexed,  but 
in  limitation  of  its  continuance,  the  interest  will  determine,  whether 
the  legatee  directly  make  the  disposition,  or  the  law  does  it  for  him 
in  consequence  *>f  his  own  preceding  acts.  We  shall  now  examine 
the  cases,  to  ascertain  how  far  they  support  the  above  observations. 

In  Dommett  v.  Bedford,(q)  a  case  sent  out  of  Chancery  for  the 
opinion  of  the  Court  of  King's  Bench,  the  testator  bequeathed  to  his 
nephew,  Mr.  Woodham,  an  annuity  of  30Z.  for  life,  to  be  paid  half- 

(fc)  Litt.  sect  361.    Swinb.  pt.  4.  sect.  13.  art.  6. 

(/)  See  Large's  case,  2  Leon.  82.          (m)  Ante,  p.  502.          (n)  18  Ves.  433. 
•0)  Ante;  p.  502.        (ft  Wilkinson  v.  Wilkinson,  2  Wils.  C.  C.  47. 
6  Term.  Rep.  684. 


SECT.  II.]  upon  Condition.  527 

yearly,  and  with  which  he  charged  his  real  estate.  The  testator  then 
gave  a  strict  direction,  that  the  annuity  should  be  paid«from  time  to 
time  to  Woodham  only ;  whose  receipt,  under  his  own  hand,  and 
none  other,  should  be  a  sufficient  discharge ;  the  testator's  intent 
being,  that  the  annuity  or  any  part  of  it  should  not  on  any  account 
be  aliened  for  the  whole  or  any  period  of  Woodharrfs  life  ;  and  if  the 
same  should  be  so  aliened,  it  should  immediately  cease  and  deter- 
mine. .  Woodham  became  a  bankrupt  after  the  death  of  the  testator ; 
and  the  commissioners  assigned  the  annuity  to  the  assignees.  The 
Judges  certified  their  opinion,  that  by  the  bankruptcy  and  assign- 
ment the  annuity  ceased  and  determined. 

It  is  observable,  the  Court  did  not  say  that  the  annuity  was  forfeit- 
ed, which  it  would  have  done,  upon  the  breach  of  a  condition.  It 
declared  there  was  a  cesser  of  Woodham's  interest  in,  and  a  deter- 
mination of,  the  annuity.  This  then  was  a  limitation,  not  a  condi- 
tion. It  was  the  testator's  intention  that  the  annuity  should  continue 
only  so  long  as  Woodham  could  receive  it;  and  that,  if  in  any  event 
he  were  precluded  from  so  doing,  the  personal  benefit  intended  for 
him  should  determine.  The  case  establishes  the  following  proposi- 
tion ;  that  a  general  restraint  of  alienation  includes  as  well  a  dispo- 
sition by  act  of  law,  as  by  the  specific  act  of  the  person  prohibited. 

Doe  v.  Hawke(r)  is  a  case  of  similar  description  with  the  last. 
There  a  farm,  held  under  the  Duke  of  Newcastle  for  twenty-one 
years,  was  devised  by  the  testator  to  his  nephew,  Abraham  Ibbotson, 
in  the  following  manner  :  He  gave  the  tenant-right  of  it  to  Abra- 
ham, he  performing  the  obligations  in  the  lease,  "  but  not  to  sell 
or  dispose  of  such  tenant-right  to  any  other  person.  And  if  he 
refused  to  dwell  there  himself,  or  keep  it  in  his  own  possession,  his 
nephew  John  was  to  have  the  tenant-right."  After  Abraham  was 
in  possession  of  the  farm,  he  deposited  the  lease  with  a  Mr. 
Crookes  as  a  security  for  a  debt,  and  it  was  afterwards  delivered 
over  to  another  creditor,  who  discharged  the  demand  for  Abraham, 
and  received  from  him  a  warrant  of  attorney  to  confess  a  judgment, 
which  was  entered  up,  and  execution  taken  out.  Under  that  ex- 
ecution, the  lease  was  sold,  and  assigned  by  the  sheriff,  and  the  pur- 
chasers (defendants)  immediately  put  into  possession  of  the  farm. 
Abraham  left  the  farm  on  the  morning  before  the  sale,  and  from 
that  day  he  ceased  to  dwell  there,  or  to  have  any  possession  of  it 
Under  those  circumstances,  John,  the  devisee  over,  claimed  the 
farm ;  a  claim  which  was  established  by  the  opinion  of  the  Court 
of  King's  Bench. 

The  last  case  was  decided  upon  the  devise  being  a  conditional 
limitation,  and  not  simply  a  condition.  It  was  the  clear  intention 
of  the  testator  (and  as  appeared  from  the  terms  of  the  devise)  to 
give  the  lease  to  Abraham,  so  long  only  as  he  continued  to  live  on 
the  farm.  If  he  quitted  it,  his  interest  was  to  determine  at  that 
period,  and  to  go  over  to  John.  All  that  was  necessary  for  John  to 
show  to  complete  his  title,  was  the  abandonment  of  possession  by 
Abraham.  This  he  was  enabled  to  do,  as,  from  the  time  of  the 
sale  by  the  sheriff,  Abraham  neither  resided  on  the  farm,  nor  retain- 
ed the  possession  of  any  part  of  it.  The  event  happened  upon 

(r)  2  East.  4-81. 


528  Of  Legacies  [Cn.  XIIL 

which  his  interest  determined,  and  that  of  John  began.  Whether 
Abraham's  teaving  the  farm  was  in  consequence  of  his  own  volun- 
tary act,  or  by  compulsion  of  law,  was  immaterial ;  since,  in  either 
case,  he  was  the  author  of  the  necessity  ;  and  the  terms  of  the  de- 
vise were  general,  positive,  and  peremptory. 

In  unison  with  these  decisions,  Sir  W.  Grant  derermined  the 
case  of  Shee  v.  Hale.(s)  Mr.  Mootham  bequeathed  his  residuary 
estate  to  trustees,  to  pay  to  his  son  John  quarterly  a  clear  .annuity 
of  200/.  for  life, ••-"-  or  until  such  time  as  John  should  sign  any  in- 
strument whereby  or  in  which  he  should  contract  or  agree  to  sell, 
assign,  or  otherwise  part  with  the  same,  or  any  part  of  it ;  or  in 
any  way  charge  the  same,  or  any  part  thereof,  as  a  security  for 
money  to  be  lent  him  ;  or  in  any  other  manner  charge  or  dispose  of 
such  annuity,  or  any  portion  of  it,  by  anticipation  ;  or  whereby  he 
should  empower,  or  intend  to  authorize,  any  person  to  receive  all 
or  any  part  of  the  annuity,  except  the  quarterly  payment  next  after 
the  po\yer  or  authority  was  given."  The  testator  then  declared, 
"that  if  his  son  should,  at  any  time,  sign  or  execute  any  such  in- 
strument- or  writing  for  all  or  any  of  the  before-mentioned  purposes 
(except  as  aforesaid,)  then  and  from  thenceforth  the  annuity  should 
cease  to  be  paid  or  payable  to  him,  and  should  sink  into  the  per- 
sonal residue,"  which  he  disposed  of  by  a  codicil.  John  survived 
the  testator,  and  having  been  imprisoned  for  debt,  took  the  benefit 
of  an  Insolvent  Act,  and  inserted  the  annuity  in  the  schedule  of  his 
property.  And  it  was  determined  that  the  annuity  was  at  an  end. 

It  appears  from  the  last  case,  that  the  annuity  was  granted  during 
the  life  of  John,  or  until  he  assigned  it.  By  the -terms  of  the  be- 
quest it  was  to  continue  no  longer  than  one  of  those  periods,  which 
ever  of  them  first  happened.  The  devise  then  was  not  a  condition, 
but  a  limitation.  The  son,  therefore,  having  taken  the  benefit  of 
the  Insolvent  Act,  and  signed  the  schedule,  authorized  other  per- 
sons within  the  terms  of  the  will  fo  receive  the  annuity,  which 
necessarily  determined  the  grant  of  it.  And  although  the  Court 
seemed  to  notice  a  distinction  .between  a  voluntary  alienation,  and-- 
one  by  operation  of  law,  viz,  under  bankruptcy,  it  is  nevertheleess 
conceived,  upon  the  authority  of  the  preceding  cases;  and  those 
after  stated,  and  the  intention  of  the  testator,  that  had  John  become  • 
a  bankrupt,  the  decision  would  have  been  the  same. 

The  last  case  which  we  shall  produce,  as  decided  upon  the  same 
principle  as  the  preceding  cases,  is  Cooper  v.  Wyatt.(t)  There  Mr. 
Herbert  devised  his  real  estate  to  trustees,  upon  trust,  as  to  a  moiety 
of  it,  that  they,  during  the  life  of  his  nephew  Samuel,  should  receive 
the  rents,  and  apply  a  sufficient  part  of  them  for  the  support  and 
education  of  Samuel's  children  ;  "  and  if  there  should  be  a  surplus," 
then  in  trust  from  time  to  time  to  pay  and  deliver  the  same  into  the 
hands  of  Samuel  (but  not  to  his  assigns,)  during  his  life,  for  his  own 
sole  use  and  benefit ;  and  after  his  death,  in  trust  as  to  the  said  moiety. 
for  SamueVs  children,  as  in  the  will  mentioned  :  provided,  that  if 
Samuel  should,  by  any  ways  or  means,  sell,  dispose  of,  or  incumber 
the  right,  benefit,  or  advantage  he  might  have  for  life,  or  any  part  of 

(s)  13  Ves.  405. 

(0  5  Mad.  482.  and  see  Wilkinson  v.  Wilkinson,  2  Wils.  C.  C.  47. 


SECT.  II.]  .      -  upon  Condition.  529 

it,  then  the  right,  benefit,  and  advantage  of  his  said  nephew  for 
life,  should  cease  and  determine  as  to  him,  and  be  applied  for  the 
benefit  of  his  children.  Samuel  survived  the  testator,  and  became 
a  bankrupt,  and  the  assignee  claimed  the  surplus  rents  devised  to 
the  bankrupt,  notwithstanding  the  provision  contained  in  the  will 
against  alienation  ;  but  the  children  insisted  that  those  rents  be- 
longed to  them  under  the  limitation  over  in  the  will.  And  the  opinion 
of  Sir  John  Leach,  V.  C.  was  in  their  favour. 

It  appears  to  have  been  the  testator's  intention  to  limit  the  rents 
to  Samuel,  either  during  life  or  until  alienation.  The  interest  for 
life  was  to  be  reduced  to  a  shorter  period,  if  he  disposed  of  or  en- 
cumbered it,  and  in  that  event  the  testator  substituted  the  nephew's 
children  in  the  place  of  their  father,  by  a  limitation  over  of  the  rents. 
The  devise,  therefore,  operating  as  a  limitation,  and  not  as  a  con- 
dition, it  was  a  necessary  consequence  from  the  preceding  cases, 
that  whether  the  alienation  took  place  by  the  voluntary  act  of  Sam- 
uel, or  from  his  bankruptcy,  the  event  would  have  happened,  upon 
which  his  estate  in  the  rents  was  to  cease,  according  to  the  terms  of 
the  devise,  and  that  of  the  children  was  to  begin. 

The  preceding  cases  are  instances  where  alienations  by  the  lega- 
tees were  made  the  periods  for  the  natural  expirations  of  the  in- 
terests given  to  them,  and  therefore  not  being  repugnant  to  any  legal 
incident  belonging  to  an  estate,  the  provisions  against  such  aliena- 
tions were  adjudged  to  be  obligatory.  But  where  the  bequest  is  of 
an  intere'st  for  life  to  a  man,  (and  it  is  immaterial  whether  directly 
to  or  in  trust  for  him,)  and  the  testator  declares  his  intention  that 
the  subject  so  given  shall  be  to  the  separate  use  of  the  legatee,  and 
not  be  assignable  by  him  in  anticipation  or  otherwise,  and  there  is 
no  limitation  over  upon  an  alienation,  the  intended  restriction  being 
repugnant  to  the  jus  disponendi  legally  incident  to  the  estate  is 
void.  Consequently  neither  the  voluntary  disposition  of  the  life-in- 
terest by  the  legatee,  nor  the  legal  disposition  of  it  in  bankruptcy, 
will  determine  that  interest ;  but  in  the  one  case  the  particular  as- 
signee, and  in  the  other,  the  assignee  under  the  commission,  will  be 
entitled  to  the  life  estate. 

Thus  in  Brandon  v.  Robinson,(u]  the  testator,  after  devising  his 
real  and  personal  estates  to  trustees,  to  sell  and  divide  among  his 
children,  who  were  to  take  vested  interests  at  twenty-one,  directed 
the  share  of  his  son  Thomas  Groom  to  be  laid  out  in  the  funds,  in 
the  names  of  the  trustees,  during  the  life  of  Thomas,  and  the  divi- 
dends, as  they  became  due,  to  be  paid  from  time  to  time  into  his 
own  hands  or  upon  his  proper  order  and  receipt,  subscribed  with 
his  own  hand,  to  the  intent  that  they  should  not  be  grantable,  trans- 
ferrable,  or  otherwise  assignable,  by  way  of  anticipation  of  any  un- 
received  payment,  or  any  part  of  it ;  and  that,  upon  the  death  of 
Thomas,  the  principal  with  the  dividends  should  be  paid  to  such 
persons  as  would  be  entitled  to  Thomas's  personal  estate,  as  if  the 
share  had  formed  part  of  it,  and  he  had  died  intestate.  Thomas, 
having  survived  the  testator  and  attained  twenty-one,  became  a 
bankrupt.  His  assignee  claimed  the  dividends  upon  the  share 
which  should  accrue  during  the  life  of  Thomas,  upon  the  ground 

(«)  ISVes.  429. 


530  Of  Legacies.  [Cn.  XIII. 

that  the  trust  of  the  dividends  having  been  declared  in  favour  of 
Thomas  for  life,  the  restraint  of  alienation  was  repugnant  to  his 
interest,  and  therefore  void.  Lord  Eldon,  being  of  that  opinion, 
over-ruled  a  general  demurrer  of  the  trustees  to  the  bill  of  the  as- 
signee. 

It  is  apparent  in  the  last  case,  that  the  testator  intended  his  son 
Thomas  to  take  an  estate  for  life.  There  was  no  declaration  that 
his  estate  should  cease  upon  alienation,  to  show  that  such  event 
was  meant  to  be  a  period  short  of  a  life-interest,  at  which  the  be- 
quest was  determinable,  as  in  Dommett  v.  Bedford  before  stated  ;(x) 
nor  was  there  any  limitation  over  upon  parting  with  it,  as  in  the 
preceding  authorities.  But  the  case  was  a  simple  trusty  for  life, 
adopted  with  a  declaration  that  the  legatee  should  not  dispose  of 
his  interest,  which  was  a  requisition  repugnant  to  the  estate,  and 
consequently  ineffectual.  We  shall  next  consider  the  necessity  of 
observing — 

C. — Conditions  not  to  dispute  the  validity  of  wills  and  testa- 
ments. 

When  legacies  are  given  to  persons  upon  conditions  not  to  dispute 
the  validity  or  the  dispositions  in  wills  or  testaments,  the  conditions 
are  not  in  general  obligatory,  but  only  in  terrorem.  If  therefore 
there  exist  probabilis  causa  litigandi,  the  non-observauce  of  the 
conditions  will  not  be  forfeitures. (y)  The  reason  seems  to  be  this; 
a  court  of  equity  does  not  consider  that  the  testator  meant  such  a 
clause  to  determine  his  bounty,  if  the  legatee  resorted  to  snch  a  tri- 
bunal to  ascertain  doubtful  rights  under  the  will,  or  how  far  his 
other  interests  might  be  affected  by  it ;  but  merely  to  guard  against 
vexatious  litigation. 

But  when  the  acquiescence  of  the  legatee  appears  to  be  a  material 
ingredient  in  the  gift,  which  is  made  to  determine  upon  his  contro- 
verting the  will  or  any  of  its  provisions,  and  in  either  of  those  events 
the  legacy  is  given  over  to  another  person,  the  restriction  no  longer 
continues  a  condition  in  terrorem,  but  assumes  the  character  of  a 
conditional  limitation.  The  bequest  is  only  quosque,  the  legatee 
shall  refrain  from  disturbing  the  will.  And,  if  he  controvert  it,  his 
interest  will  cease  and  pass  to  the  other  legatee.  As  an  example 
of  this : 

In  Clever  v.  Spurling,(z)  a  freeman  of  London, ,  after  noticing  in 
his  will  that  he  had  advanced  his  only  daughter  in  marriage,  gave 
to  her  351.  provided  if  she  or  her  husband  refused  after  his  death  to 
give  a  release  to  his  executors,(a)  or  should  in  -anywise  trouble  or 
disturb  them  upon  any  claim  or  pretence  by  virtue  of  the  custom  of 
London,  the  legacy  should  go  over  to  the  children  of  his  deceased 
youngest  daughter.  The  daughter  and  her  husband  claimed  by  the 
custom  in  opposition  to  the  will,  but  it  was  insisted,  that,  as  the  le- 
gacy was  given  over  in  the  event  of  the  legatee  or  her  husband  mak- 
ing any  claim,  or  disturbing  the  executors  under  pretence  of  the 
custom,  a  right  became  vested  in  the  legatees  over  by  the  claim  that 
had  been  made,  which  a  court  of  equity  would  not  divest.  And  so 
the  Master  of  the  Rolls  determined. 

(X)  Ante,  p. 526  . 

(y)  Powell  v.  Morgan,  2  Vein.  90.  Morris  v.  Burroughs,  1  Atk.  404.  Loyd 
v.  Sfiillet,  3  P.  Will.  344.  (z)  2  P.  Will.  526.  (a)  Vide  ante,  p.  514.  " 


SECT.  II.]  upon  Condition.  531 

If,  however,  the  limitation  over  upon  disputing  or  claiming  against 
the  will  have  none  other  effect  than  what  the  law  would  produce,  if 
the  express  disposition  had  been  omitted,  the  condition  will  be  in 
terrorem  only.  So  that  if  a  legacy,  to  which  such  a  condition  is 
annexed,  instead  of  being  given  to  a  stranger,  be  limited  over  to  his 
executors,  who  would  be  entitled  to  receive  it  as  part  of  his  assets, 
without  any  such  particular  direction,  the  testator  will  be  considered 
as  meaning  no  more  by  the  declaration  than  if  he  had  said  nothing 
upon  the  subject;  and  then  the  bequest  falls  within  the  rule  of  con- 
struction before  mentioned,  in  regard  to  conditions  in  terrorem.(b) 
But  if  the  testator  direct  the  legacy  to  fall  into  the  residue  upon  a 
breach  of  the  condition,  and  dispose  of  that  fund,  the  residuary  le- 
gatee will  be  a  particular  legatee  of  the  individual  legacy,  and  as 
such  be  entitled  to  it  if  the  condition  be  broken. (c) 

D. — Where  the  time  of  payment  of  a  legacy  and  the  condition  to 
devest  it  are  inconsistent. 

When  a  certain  and  determinate  period  is  appointed  for  the  pay- 
ment of  a  legacy,  and  it  is  given  over,  upon  the  happening  of  a  con- 
tingent event,  consistency  requires  that  the  devesting  clause  should 
be  confined  within  the  time  when  the  legacy  is  payable ;  for,  as  the 
legatee  is  entitled  to  the  fund,  upon  the  arrival  of  the  period  fixed 
for  its  payment,  and  may  spend  it  as  his  own,  if  the  contingent  event 
afterwards  happen,  it  is  ineffectual.  So  that,  if  a  legacy  were  given 
to  B.  to  be  paid  within  six  months  after  the  death  of  the  testator, 
and  it  was  declared  in  another  part  of  the  will,  that  if  B.  died  before 
twenty-one,  the  legacy  should  go  over  to  C. ;  the  contingency  of  B. 
dying  under  twenty-one  would  be  restricted  to  the  period  of  six 
months  after  the  testator's  death.  Hence  it  follows,  that  if  B.  sur- 
vived the  six  months  he  would  be  entitled  to  the  legacy,  although  he 
might  die  under  the  age  of  twenty-one.  An  instance  of  this  oc- 
curred in  the  following  case : 

In  Cknt  v.  Bridges,(d)  Mr.  Bridges  bequeathed  to  his  two  young- 
est daughters  600J.  a-piece,  to  be  paid  within  six  months  after  his 
decease,  declaring,  that  if  both  or  either  of  them  died  under  twenty- 
one,  he  gave,  so  far  as  he  might  by  law,  their  or  her  portions  or  portion 
to  the  persons  named  in  the  will.  Margaret  survived  the  six  months, 
and  received  her  legacy ;  but  died  under  twenty-one,  having  by  will 
disposed  of  her  personal  estate.  The  question  was  between  the 
persons  claiming  under  her  disposition,  and  those  claiming  under 
the  limitation  over  in  the  will  of  Mr.  Bridges.  And  it  was  decided 
in  favour  of  the  former,  upon  the  principle  before  stated. 

The  legality  of  conditions  in  restraint  of  marriage  was  considered 
in  the  first  section.  It  is  now  proposed  to  ascertain  with  as  much 
certainty  as  the  cases  allow, — 

3.  When  conditions  in  restraint  of  marriage  will  and  will  not  be 
considered  as  effectually  performed,  and  when  the  performance  is 
become  unnecessary ;  commencing  with— 

A. — Conditions  requiring  marriages  -with  consent. 
It  appears  from  the  authorities  stated  in  the  beginning  of  this 
section,  that  where  conditions  are  precedent,  they  ought  to  be  fully 

(6)  Caee  v.  Russell,  2  Ventr.  352. 

(c)  Vide  Lloyd  v.  Branton,  3  Meriv.  118.  et  infra,  (A.  6.)    (d)  Finch  sRep.  26. 


532  Of  Legacies  [Cn.  XIII. 

performed;  and  that  the  questions  in  those  cases.,  where  the  terms 
have  not  been  literally  pursued,  are,  whether  the  conditions  be  sub- 
stantially executed  within  the  intent  and  meaning  of  the  persons 
imposing  them.     So  it  is  in  instances  of  conditions  requiring  mar- 
riages with  consent  of  executors  or  trustees,  &c.  previously  to  the 
vesting  of  the  legacies.     The  rule  of  construction  is  the  same,  where 
the  like  conditions  are  subsequent,  with  a  limitation  over,  upon  non- 
compliance  with  their  terms.     For  the  Court  does  not  relieve  against 
non-performance,  but  merely  determines  whether  the  conditions  have 
not  been  in  substance  performed,  so  as  to  answer  the  views  and  in- 
tentions of  testators,  though  not  according  to  the  letter.     We  shall 
endeavour  to  extract  general  principles  applicable  to  these  subjects, 
and  then  notice  excepted  cases,  with  the. reasons  for  the  exceptions. 
(A.  1.) — At  what  lime  consent  ought  to  be  given. 
As  a  general  rule,  it  may  be  stated,  that  when  the  consent  of  ex- 
ecutors or  trustees,  or  the  major  number  of  them,  is  required  to  the 
marriages  of  legatees,  it  must  be  obtained  before  or  at  the  times  of 
the  marriages.     For  suppose  the  condition  to  be  precedent,  as  the 
legacy,  if  at  all,  was  to  vest  upon  marriage,  if  the  consent  be  not  ob-' 
tained  at  that  period,  an  approbation  afterwards  cannot  be  effectual 
to  vest  the  legacy,  since  the  testator  has  declared  that  the  period 
for  vesting  is  marriage;  provided  the  previous  assent  of  his  execu- 
tors or  trustees  was  procured.     So  also,  if  the  condition  be  subse- 
quent, with  a  limitation  over  of  the  legacy  upon  a  breach  of  it. 
Because  a  consent  after  marriage  can  never  have  the  effect  of  de- 
vesting  an  interest  become-vested  in  other  persons,  upon  a  marriage 
without  consent.    For  these  reasons  Lord  Hardivicke  acknowledged, 
in  Reynish  v.  Martin,(e)  that,  as  the  testator's  daughter  married 
without  the  consent  of  the  trustees,  their  subsequent  approbation 
was  immaterial,  "  because  (as  he  observed)  no  subsequent  approba- 
tion could  amount  to  a  performance  of  the  condition,  nor  dispense 
with  a  breach  of  it." 

In  Malcolm  v.  O'Callaghan,(f)  Mr.  Stopford  bequeathed  to  his 
daughter  Christian,  2000Z.  payable  on  the  day  of  her  marriage,  pro- 
vided it  took  place  with  the  consent  and  approbation  of  his  two  ex- 
ecutors, or  the  survivor  of  them,  his  executors  or  administrators, 
with  a  limitation  over  of  the  legacy  to  another  daughter,  Elizabeth, 
if  Christian .  married  without  such  consent.  The  testator  added  a 
codicil,  by  which  he  limited  over  the  legacy  if  Christian  died  under 
the  age  of  twenty-five,  or  married  without  such  consent  as  aforesaid ; 
but  there  was  no  direction  for  payment  of  the  money  to  her  at  that 
age.  Christian  married  without  the  consent  of  the  executors,  who 
approved  of  it  afterwards,  and  became  trustees  in  her  marriage  set- 
tlement. She  attained  the  age  of  twenty-five.  And  Sir  Thomas 
Plumer,  then  V.  C.  determined  the  following  points :  1.  That  mar- 
riage with  consent  was  a  condition  precedent ;  and  therefore  neces- 
sary to  be  performed  before  the  legacy  became  payable.  2.  That  a 
consent  subsequent  to  the  marriage  did  not  satisfy  the  words  of  the 
will.  And,  lastly,  that  marriage  without  consent  being  one  of  the 
two  events  upon  which  the  limitation  over  was  to  take  place,  and  had 

(e)  3  Atk.  331.  and  see  Lord  Eldon's  observations  in  Clarke  v.  Parker,  19  Ves. 
21.    See  also  Long  v,  Ricketts,  2  Sim.  8c  Stu.  179.  (/)  2  Mad.  349. 


SECT.  II.]  upon  Condition.  5.J3 

happened,  although  the  other  was  defeated  by  Christian's  attaining 
twenty-five,  yet  the  executory  bequest  over  was  absolute,  for  Chris- 
tian's attaining  that  age  could  impart  no  right  to  her  in  the  legacy, 
since  it  was  not  given  to  her  at  that  period, (g)  or  upon  any  other 
event  than  marriage  with  consent. 

The  last  case  is  a  determination  that  the  expressions  "consent"  and 
"  approbation"  are  to  be  considered  of  the  same  import.  And  it  is 
not  a  little  surprising,  that  a  decision  should  be  found  acknowledg- 
ing a  distinction  between  them  in  regard  to  the  present  subject. 

In  BurUton  v.  Humfrey,(h]  the  trust  of  real  and  personal  estates 
was  declared  in  favour  of  the  testator's  daughter,  if  she  married  with 
the  consent  and  approbation  of  his  trustee,  testified  in  writing ;  but 
if  she  married  without  such  consent  or  approbation,  or  died  unmar- 
ried, the  property  was  devised  over.  The  daughter  married  soon  after 
the  testator's  death,  not  having  previously  made  any  application  to 
the  trustee  for  his  consent.  He,  however,  about  eleven  months  after- 
wards, gave  his  approbation  in  writing,  expressing  his  belief  at  the 
same  time  that  he  should  have  consented  before  the  marriage,  if  he 
had  been  applied  to  for  the  purpose.  Lord  Hardwicke  determined, 
with  respect  to  the  personal  fund,  that  the  condition  was  performed 
by  the  subsequent  approbation  of  the  trustee. 

In  the  above  case,  Lord  Hardwicke  endeavored  to  distinguish 
between  the  sense  of  the  words  "  consent"  and  "  approbation ;" 
and  he  held,  after  a  severe  struggle,  that  although  the  terms  of  the  con- 
dition, upon  which  the  bequest  was  made,  joined  the  words  "  con- 
sent" and  "  approbation"  by  the  copulative  "  and,"  whence  it  might 
be  supposed  that  each  word  might  have  been  used  in  the  same 
sense,  yet  as  the  limitation  over  was  in  the  disjunctive,  i.  e.  upon 
marriage  without  consent  or  approbation  of  the  trustees,  his  Lord- 
ship said  he  would  adopt  the  latter  clause  instead  of  the  former. 
It  can  be  scarcely  doubted,  that  his  Lordship's  decision  was  con- 
trary to  the  intention  of  the  testator;  for  it  is  clear,  from  the  terms 
of  the  devise,  that  he  used  the  words  "  consent"  and  "  approbation" 
in  the  same  sense.  The  marriage  of  the  daughter  was  the  event 
upon  which  the  devise  was  made  to  her.  And  that  it  might  not  be 
an  imprudent  one,  the  testator  directed  it  to  be  had  witli  the  con- 
sent and  approbation  of  his  trustee.  That  consent  and  approba- 
tion, in  order  to  answer  the  end  in  view,  must  necessarily  have  been 
intended  by  the  testator  to  precede  the. marriage ;  and  Lord  Hard- 
wicke's  criticism  on  the  clause  limiting  over  the  devise,  seems;  to 
have  had  no  other  effect  than  to  impute  to  the  testator  an  inten- 
tion which  never  entered  into  his  mind.  Compassion  for  the  daugh- 
ter appears  to  have  influenced  his  Lordship,  and  to  have  warped 
his  better  judgment,  against  which  he  effectually  struggled  in  mak- 
ing his  decree.  A  decree  which  authorizes  this  unreasonable  pro- 
position, that  if  consent  or  approbation,  after  the  marriage  had  been 
solemnized  eleven  months,  be  sufficient,  it  must  equally  be  so  at 
any  time  during  the  life  of  the  trustee.  During  all  which  time,  the 
question  whether  the  marriage  was  solemnized  in  conformity  with 
the  condition  would  necessarily  continue  in  uncertainty.(i) 

(e}  A  circumstance  distinguishing  the  present  case  from  that  of  Randal  v. 
Payne,  stated  ante,  p.  519.  ^  ^  (A)  Ambl.  256.  (i)  See  19  Vcs.  21. 

VOL.  I.  3    1 


534  Of  Legacies  [Cn.  XIII. 

Having  shown  at  what  period  consent  to  the  marriage  ought  to 
be  given,  we  shall  proceed  to  consider — 

(A.  2.) — From  what  persons  the  required  assent  ought  to  be  ob- 
tained. 

The  confidence  reposed  in  individuals  by  testators,  whether  rela- 
tives or  strangers,  to  decide  upon  the  propriety  of  the  marriages  of 
their  children,  is  a  personal  trust, (fe)  and  must  therefore  be  strictly 
pursued  in  the  performance.  It  resembles  leasing  powers  and  pow- 
ers of  sale.(i)  Hence,  if  the  consent  of  two  or  more  persons  be 
required  to  the  marriage  of  a  legatee,  the  assent  of  all  of  them  (if 
living)  must,  in  general,  be  obtained,  unless  the  testator  have  ex- 
pressly declared  the  approbation  of  the  majority  to  be  sufficient. 
In  Clarke  v.  Parker,(m)  Lord  Eldon  said,  "  there  is  no  case  in 
which  it  has  been  holden,  that  the  consent  of  three  trustees  being 
required,  that  consent,  which,  if  there  were  only  two,  would  have 
been  quite  sufficient,  would  do  ;  the  third  not  having  been  at  all 
consulted.  There  was  a  discretion  in  the  third,  as  well  as  in  the 
others  ;  and  there  is  no  authority,  that,  if  the  consent  of  three  be 
required,  a  marriage  with  consent  of  two  only  is  that  which  the  will 
has  prescribed." 

Contrary  to  this,  Mr.  rftkyns,  in  his  report  of  Lord  Chief  Baron 
Comyrfs  judgment  in  the  case  of  Harvey  v.  Aston,(n)  imputes  to 
him  a  dictum,  that  the  "consent  of  the  major  part  of  the  trustees" 
is  sufficient.  But  in  Clarke  v.  Parker,  Lord  Eldon  expressed  his 
belief  that  no  such  dictum  ever  fell  from  the  Chief  Baron  ;(o)  since, 
in  his  reports,(p)  (his  own  publication  of  his  argument  upon  the  ad- 
vice given  by  him  to  Lord  Hardwicke,)  as  also  in  a  manuscript 
note  which  Lord  Eldon  had  seen,  no  such  passage  was  to  be  found. 

There  is  however,  a  peculiarity  belonging  to  those  conditions, 
when  legacies  are  the  subjects,  which  makes  the  rules  of  the  Com- 
mon law  inapplicable  to  them  in  every  instance.  This  anomaly  is 
produced  from  the  adoption  of  the  Civil  law  in  the  construction  of 
personal  bequests  to  a  certain  extent;  according  to  which,  where 
the  condition  is  precedent,  it  is  considered  to  be  performed  within 
the  meaning  of  the  testator,  if  executed  cy  pres  when  the  whole 
cannot  be  literally  fulfilled  from  unavoidable  circumstances. (9) 
The  principle  is  the  presumption  of  the  testator  not  requiring  the 
performance  of  impossibilities,  and  that  his  intention  will  be  sub- 
stantially carried  into  effect,  by  permitting  it  to  be  executed  so  far 
as  it  can  be  done.  Whereas,  by  the  Common  law,  as  before  shown, 
(r]  if  a  precedent  condition  cannot  be  literally  performed,  no  mat- 
ter from  what  cause,  the  interest,  to  arise  upon  the  performance  only, 
will  never  vest.  The  sole  questions  asked  by  that  law,  are,  Does 
the  devisee  answer  the  description  of  the  devise  9  Has  he  fulfilled 
all  its  conditions'?  It  does  not  speculate  upon  the  intention.  Hence, 
so  far  as  the  Civil  law  is  followed  in  the  construction  of  personal 
bequests,  the  rule  of  the  Common  law  is  superseded  ;  consequently, 
precedent  conditions,  requiring  marriages  with  consent  if  substan- 

(*)  2  Dow.  Parl.  Ca.  89. 

(0  See  3  East,  410.  and  "Law  of  Husband  and  Wife,"  1  vol.  p.  116. 

(m)  19Ves.  17.  (72)  l  Atk.  375.  (o)  19  Yes.  15.  24. 

(  /»)  Com.  726.     (7)  Swinb.  pt.  4  sect.  8.     4  Bro,  C,  C.  328.     (r)  Ante,  p.  505. 


SECT.  II.]  upon  Condition.  535 

tially  complied  with,  when  they  cannot  be  executed  according  to 
the  letter,  will  be  considered  as  sufficiently  performed  to  entitle  the 
lagatee  to  the  legacy.  It  follows,  from 'these  observations — 

That,  if  a  precedent  condition  require  the  consent  of  three  trustees 
to  the  marriage  of  the  legatee,  and  one  of  them  die ;  the  approba- 
tion of  the  survivors  previously  to  the  marriage  will  be  a  sufficient 
compliance  with  the  condition.  For,  although  the  testator  must 
have  supposed  that  all  his  trustees  would  be  living  at  the  time  of  the 
legatee's  marriage,  or  he  would  not  have  required  their  joint  con- 
sent, yet  doubtless  he  could  not  mean,  that  by  the  accident  of  the 
death  of  one  of  them,  his  bounty,  or,  it  may  be,  his  obligation  as  a 
parent,  should  be  disappointed.  It  may  be  reasonably  presumed, 
that  if  the  possibility  of  one  of  the  trustees  dying  before  it  was  ne- 
cessary to  consult  him  on  the  marriage,  had  occurred  to  the  tes- 
tator, he  would  have  expressly  empowered  the  survivors  to  consent 
or  disapprove  of  it.  And  since  a  prudent  connection  was  the  es- 
sence of  the  condition,  and  the  object  was  attainable  in  securing  it 
by  the  previous  consent  of  the  two  trustees,  the  case  seems  to  fall 
under  the  exception  in  the  civil  law  to  a  strict  performance  of  the 
condition ;  viz.  when  a  testator  appears  to  have  more  regard  to  the 
end,  than  to  the  means  prescribed  for  its  attainment.(s) 

We  must,  however,  be  careful  to  distinguish  between  conditions 
precedent  and  subsequent.  For,  when  the  condition  is  subsequent, 
and  marriage  without  the  joint  consent  of  two  or  more  trustees  or 
executors  is  made  the  contingency  upon  which  a  legacy  is  to  be  de- 
vested,  and  to  go  over  to  another  person,  then,  if,  by  the  death  of 
one  or  all  of  them,  it  is  impossible  to  perform  the  condition  lite- 
rally, the  legatee  will  be  excused  from  performance  altogether, 
upon  the  principle  before  stated, (t)  that  subsequent  conditions  to 
devest  estates  are  construed  with  great  strictness.  Consequently, 
if  the  terms  of  it  cannot  be  performed,  in  each  and  every  particular, 
the  whole  condition  becomes  void  and  the  interest  of  the  legatee 
absolute.  The  following  are  authorities  upon  this  subject : 

In  Peyton  v.  Bury,(u)  the  testator  gave  his  residuary  personal 
estate  to  Jane  Styles,  provided  she  married  with  the  consent  of  his 
two  executors ;  but  if  she  married  without  it,  he  gave  the  residue  to 
j$.  B.  One  of  the  executors  died,  and  Jane  afterwards  married 
without  the  consent  of  the  survivor,  upon  which  A.  B.  claimed  the 
property.  But  the  Master  of  the  Rolls,  after  declaring  his  opinion 
that  the  condition  was  subsequent,  upon  the  presumed  intent  of  the 
testator  not  to  keep  his  residuary  estate  in  contingency  during  an 
indefinite  period,  which  might  have  been  for  twenty  or  thirty  years 
if  the  condition  were  precedent,  determined  that  Jane  took  a  vested 
interest  immediately  upon  the  death  of  the  testator,  defeasible  upon 
her  marriage  without  the  joint  consent  of  the  executors;  a  condi- 
tion, which  having  become  impossible  by  the  death  of  one  of  them, 
her  qualified  interest  became  absolute.  His  Honour  therefore  dis- 
missed the  claim  of  Jl.  13. 

In  the  next  case,  all  the  executors  died  before  the  marriage  of 
the  legatee,  and  the  decision  was  similar  to  the  last  authority. 

(«)  Swinb.pt  4.  sect.  7.  art.  4.  and  see  19  Vcs.  16.  (t}  Ante,  p.  514.  523. 

(w)  2  P.  Will.  626.  and  see  Jones  v.  Suffolk,  1  Bro.  C.  C.  5<?8.  ed.  by  Belt,  also 
Knight  v.  Cameron,  14  Ves.  389. 


586  Of  Legacies  [Cn.  XIII. 

In  Graydon  v.  Hicks,(x]  Mr.  Graydon  bequeathed  to  his  only 
daughter  Mary,  100QI.  to  be  paid  at  twenty-one,  or  on  the  day  of 
marriage,  which  should  first  happen,  provided  she  married  with  the 
consent  of  his  executors  (three  in  number);  but  if  she  died  before 
the  money  became  payable  on  the  aforesaid  conditions,  he  gave  the 
legacy  to  B.  and  C.  Mary  married  under  twenty-one,  but  all  the 
executors  were  then  dead.  B.  and  C.  claimed  the  10001.  under  the 
limitation  over  to  them  upon  the  marriage  of  Mary  under  twenty- 
one,  without  consent.  But  Lord  Hardwicke  decided  against  the 
claim,  upon  the  principle,  that  the  condition  being  subsequent,  viz. 
to  devest  the  legacy  in  the  event  of  marriage  without  consent  before 
twenty-one ,  as  the  act  of  God  had  made  the  performance  impos- 
sible, the  interest  of  Mary  became  absolute. 

So  in  Mslabie  v.  Rice,(y)  determined  by  the  Court  of  Common 
Pleas  upon  a  case  out  of  Chancery,  Mr.  Hatton  devised  his  estates 
and  mansion  house  with  various  articles  in  and  about  the  premises, 
after  the  death  of  his  wife,  to  Hannah  Lilly  for  life,  in  case  she 
continued  unmarried,  remainder  after  her  decease  to  such  persons 
as  she  should  appoint  by  deed  or  wrill,  with  remainder,  in  default  of 
appointment,  to  Mice  and  Mary  Lilly  absolutely  in  equal  shares. 
But  if  Hannah  married  during  the  life  of  his  wife,  with  her  consent 
and  approbation,  or  after  her  death  with  the  consent  and  approba- 
tion of  James  Turney  and  Thomas  Lilly,  or  of  the  survivor,  in  either 
case  Hannah  was  to  enjoy  the  property,  "  in  the  same  manner  as 
she  could  have  done  if  she  had  continued  single."  Hannah  married, 
but  not  until  James  Turney  and  Thomas  Lilly,  and  the  testator's 
widow,  were  dead,  whose  consent  therefore  she  was  prevented  from 
obtaining;  nevertheless  the  question  was,  whether  her  estate  for 
life  did  not  determine  by  her  marriage  without  that  consent'?  And 
the  Judges  returned  the  following  certificate;  "  We  are  of  opinion 
that  the  condition  was  subsequent;  and  that,  as  the  compliance 
with  it  was,  by  the  deaths  of  the  testator's  widow  and  James  Turney 
and  Thomas  Lilly  before  the  marriage  of  Hannah,  become  impos- 
sible, by  the  act  of  God,  her  estate  for  life  is  become  absolute ; 
also,  that  she  may  now  execute  the  power  of  appointment  in  the 
manner  and  form  directed  by  the  will." 

And  where  an  executor  sole  or  joint  renounces  the  executorship 
or  refuses  to  act  in  the  office  to  which  the  authority  to  assent  is  an- 
nexed, and  the  legatee  whose  interest  is  to  be  devested,  and  to  go 
over  upon  marriage  without  consent  of  the  renouncing  or  non-acting 
executor,  marries  without  obtaining  it,  the  renunciation  or  refusal  to 
act  of  the  executor  will  operate  as  a  dispensation  with  the  condition, 
and  absolve  the  legatee  from  attempting  to  perform  it  in  toto,  or  in 
part,  as  the  case  may  happen. 

In  the  case  of  Worthington  v.  Evan9,(z)  Thomas  Worthington, 
the  father,  by  his  will  made  in  November  1805,  after  giving  30001. 
to  be  divided  by  his  executors  equally  among  all  the  children  of  his 
three  daughters,  gave  to  his  executors,  David  Evans  and  Edward 
Heyward,  their  executors,  administrators,  and  assigns,  his  household 

(x)  2  Atk.  16.  18. 

(y)  3  Mad.  256.  and  see  Grant  v.  Dyer,  2  Dow.  Parl.  Ca.  73.  S.  P. 

(z)  iSim.  &Stu.  165. 


SECT.  II.]  upon  Condition.  537 

goods  and  other  personal  estate  therein  mentioned,  and  also  all  the 
residue  of  his  personal  estate  after  payment  of  his  debts,  upon  trust, 
for  the  use  and  benefit  of  his  son  (the  plaintiff,)  to  be  paid  and  trans- 
ferred to  him  as  soon  as  conveniently  might  be  after  his  marriage, 
with  the  interest  and  produce  to  accrue  and  arise  in  the  mean  time, 
upon  condition,  nevertheless,  that  such  marriage  should  be  with  the 
consent  of  his,  the  testator's,  trustees,  or  the  survivor  of  them,  first 
had  and  obtained  in  writing  under  his  or  their  hand  or  hands ;  and 
after  directing  his  trustees  to  cause  an  inventory  and  appraisement 
to  be  made,  and  authorizing  them  to  permit  the  plaintiff  to  continue 
in  possession  of  a  certain  farm  till  his  marriage,  but  if  the  plaintiff 
should  marry  without  the  consent  of  the  trustees,  or  the  survivor  of 
them,  first  had  and  obtained  in  writing  as  before  mentioned,  or  in 
case  he  should,  with  or  without  their  consent,  marry  J.  P.  or  any  of 
the  daughters  of  T.  P.  then  that  the  plaintiff  should  not  be  entitled 
to  any  part  of  the  household  goods,  property  or  effects  before  be- 
queathed for  his  benefit ;  and  he  directed  the  trustees  or  the  survivor 
of  them,  to  pay  the  sum  arising  from  the  appraisement,  and  all  the 
residue  of  his  personal  property  among  all  the  children  of  his  three 
daughters,  in  equal  shares ;  and  appointed  David  Evans  and  Ed- 
ward Heyward  executors  of  his  will.  The  testator  died  in  1806  ; 
David  Evans  alone  proved  the  will,  and  alone  acted  in  the  execution 
of  the  trusts ;  the  other  executor  and  trustee,  Mr.  Heyward,  refused 
to  act  in  any  manner  in  the  trusts  of  the  will.  Soon  after  the  testa- 
tor's death  the  plaintiff  formed  an  attachment  to  a  lady,  whom  he 
afterwards  married,  and  who  was  not  of  the  family  prohibited  by  the 
testator.  This  attachment  was  formed  and  a  treaty  of  marriage  en- 
tered into  with  the  approbation  of  Mr.  Evans,  the  acting  executor 
and  trustee.  A  short  time  before  the  marriage,  the  plaintiff  applied 
for  the  consent  both  of  Evans  and  Heyward,  and  the  solicitor  of  the 
former  prepared  an  instrument  in  the  form  of  a  deed  poll,  to  be  ex- 
ecuted by  both  the  executors,  reciting  the  clause  in  the  will  and  the 
intended  marriage,  and  expressing  a  formal  consent  to  it.  This 
instrument  was  duly  executed  by  Mr.  Evans ;  but  Mr.  Heyward, 
though  he  expressed  his  perfect  consent  to  the  marriage,  declined 
executing  the  instrument,  lest  he  should  thereby  be  considered  as 
taking  upon  himself  the  trusts  of  the  will.  On  the  day  preceding 
the  one  which  was  fixed  for  the  marriage,  the  plaintiff  wrote  the 
following  letter  to  Mr.  Evans :  "  Dear  sir, — Fearful  it  should  have 
slipped  your  memory,!  have  taken  the  liberty  of  reminding  you,  that 
it  is  still  my  intention  to  be  married  to  morrow,  when  I  expect  to 
see  you  here,  and  call  on  Mr.  Heyward  on  your  road,  as  he  has  pro- 
mised me,  at  as  early  an  hour  as  you  may  think  proper."  On  the 
same  day,  Mr.  Evans  wrote  in  reply,  saying,  among  other  things, 
'•I  will,  however,  be  as  early  to-morrow  morning  as  I  possibly  can 
at  Mr.  Heyward's,  and  bring  with  me  the  proper  consent,  done  right, 
to  your  house,  which  will  be  some  time  doing."  "A".  B.  I  should 
have  sent  your  servant  home  sooner,  but  I  waited  for  Mr.  Thomas 
who  was  from  home.  But  you  know  you  have  my  consent  to  marry 
your  cousin,  Sarah  Worthington."  Mr.  Thomas  was  the  solicitor 
employed  by  Mr.  Evans  to  prepare  the  instrument.  Early  in  the 
morning  of  the  day  on  which  these  letters  were  written,  Mr.  Evans 


538  Of  Legacies  [On.  XIIL 

called  on  Mr.  Heyward,  and  produced  to  him  the  instrument  in 
question,  which  Heyward  read,  but  which  he  declined  to  sign,  on 
the  ground  that  it  might  be  considered  as  done  in  execution  of  the 
trusts  of  the  will,  in  which  he  refused  to  act.  Mr.  Evans  then  signed 
the  instrument  himself,  and  proceeded  to  the  house  of  the  plaintiff, 
where  he  found  that  the  marriage  had  taken  place  in  the  morning, 
some  hours  before  his  arrival,  and  before  the  time  when  he  signed 
the  instrument.  It  was  urged  on  the  part  of  the  plaintiff  that  the 
consent  given  was  sufficient,  that  the  power  of  consent  was  entirely 
annexed  to  the  office.  Sir  J.  Leach,  V.  C.  said,  "I  am  prepared  to 
hold,  according  to  the  intimation  of  Lord  Eldon's  opinion,  in  Clarke 
v.  Parker,  that  the  authority  to  consent  is  here  annexed  to  the  office 
of  trustee ;  and  like  other  authorities  annexed  to  that  office,  vested 
in  the  single  trustee  who  acted.  The  letter  written  by  the  acting 
trustee  the  day  before  the  marriage,  must  be  considered  as  a  suffi- 
cient consent  in  writing.  And  if  there  had  not  been  such  a  letter, 
inasmuch  as  the  formal  consent  in  writing  would  have  been  executed 
by  him  but  for  the  accidental  delay  occasioned  by  the  other  trustee, 
and  not  from  any  change  of  purpose,  the  Court  would  have  con- 
sidered his  consent  to  have  been  substantially  given,  according  to 
the  will ;  because  he  had  expressed  his  full  approbation  of  the  mar- 
riage, and  only  did  not  sign  it  for  a  reason  personal  to  himself."  And 
for  these  reasons  his  Honour  decreed  in  favour  of  the  plaintiff. 

But  where  the  authority  to  consent  t*  not  annexed  to  the  office,  it 
should  seem  that  the  renunciation  of  the  office  of  executor  or  trustee 
will  not  preclude  the  necessity  of  obtaining  the  consent  of  such  re- 
nouncing executor  or  trustee.  This,  it  is  presumed,  may  be  collect- 
ed from  the  case  of  Graydon  v.  Graydon,a)  a  branch  of  the  case  of 
Graydon  v.  Hicks,(b)  before  in  part  stated.  The  case  is  ill  reported, 
and,  at  first  sight,  would  seem  to  authorize  the  conclusion,  that  the 
forfeiture  of  the  daughter's  legacy  under  her  mother's  will  was  oc- 
casioned by  her  marriage  without  the  consent  of  tke  administrator 
with  the  will  annexed. 

In  that  case,  Mrs.  Graydon  bequeathed  all  her  wearing  apparel, 
&c.  to  her  daughter  Mary  ;  provided,  that  if  her  daughter  married 
before  the  age  of  twenty-one,  without  the  consent  and  approbation 
of  her  executor,  under  his  hand,  (if  living]  she  should  not  be  enti- 
tled to  the  legacy,  but  it  should  go  over  to  other  persons ;  and  ap- 
pointed her  sow  sole  executor.  The  son  formally  renounced  the 
executorship,  and  administration  with  the  will  annexed  was  granted 
to  a  stranger.  Mary  married  under  twenty-one,  without  the  con- 
sent either  of  her  brother  or  the  administrator.  And  the  question 
was,  whether  by  the  marriage  of  Mary  under  those  circumstances, 
she  had  not  incurred  a  forfeiture  of  the  legacy  c?  And  Lord  Hard- 
wicke  determined  in  the  affirmative  ;  but  his  reasons  are  very  shortly 
and  obscurely  stated. 

That  Lord  Hardwicke  considered  an  administrator  with  the  will 
annexed,  a  person  equally  in  the  confidence  of  the  testatrix  with  the 
executor  especially  appointed  by  her,  to  controul  the  marriage  of 
her  daughter,  can  scarcely  be  credited. (c)  That  she  had  no  such 
person  in  view  at  the  date  of  her  will,  clearly  appears  from  the  terms 

(a)  2  Atk.  16.  19.  (A)  Ante,  p.  536.  (c)  See  2  Dow  Part.  Ca.  89,. 


SECT.  II.]  upon  Condition.  539 

of  the  bequest.  The  only  consent  required  to  the  marriage  was  that 
of  the  testatrix's  executor  (her  son,)  if  living.  While  in  existence, 
he  alone  was  to  exercise  the  privilege  in  preference  to  every  other 
person.  He  was  living ;  a  circumstance,  therefore,  necessarily  ex- 
cluding the  administrator  with  the  will  annexed  from  any  such  pow- 
er. Arid,  if  he  had  been  dead,  the  cases  before  stated  prove,  that 
the  daughter  was  not  under  any  obligation  to  solicit  the  administra- 
tor's consent  to  her  marriage.  So  that,  whether  the  son  was  living 
or  dead  at  the  time  of  his  sister's  marriage,  the  right  of  the  adminis- 
trator to  be  consulted  on  the  subject  of  that  transaction  could  not 
exist.  Hence,  Lord  Hardwicke's  decision  may  with  reason  be  at- 
tributed to  the  daughter's  marrying  without  the  consent  of  her  bro- 
ther. And  that  she  did  so,  may  be  inferred  from  his  observation, 
that  "  the  power  of  assent  was  not  annexed  to  the  office  of  executor, 
but  was  independent  of  the  rest  of  his  duty  as  executor."  Whence 
it  follows,  that  renunciation  of  the  office  did  not  determine  the  son's 
power  of  assenting  to  his  sister's  marriage ;  a  power,  which  could 
not  be  enjoyed  at  the  same  time,  both  by  him  and  the  administrator. 
For  these  reasons  it  is  apprehended,  that  the  forfeiture,  declared  by 
Lord  Hardwicke,  was  in  consequence  of  the  legatee's  marriage,  with- 
out the  consent  of  her  brother,  and  not  of  the  administrator  with  the 
will  annexed. 

Having  considered  the  persons,  whose  consent  to  the  marriages 
of  legatees  is  necessary.  The  next  consideration  will  be, 

(A.  3.) — What  will  be  a  sufficient  consent. 

The  exercise  of  the  discretionary  power  of  assenting  to  the  mar- 
riages of  legatees,  is  under  the  eye  and  controul  of  a  court  of  equi- 
ty. It  will  not  suffer  that  power  to  be  abused,  but  will  examine 
into  the  conduct  and  motives  of  the  persons  entrusted  with  that 
discretion,  in  order  to  ascertain,  whether  a  refusal  to  consent  pro- 
ceeded from  vicious,  corrupt,  or  unreasonable  causes  :  a  dangerous 
assumption  of  power,  it  is  true,  but  which  the  Court  has  neverthe- 
less always  exercised. (d)  It  is  a  consequence  of  this  jurisdiction, 
that,  if  an  executor  or  trustee,  whose  assent  is  made  a  necessary 
preliminary  to  the  marriage  of  a  legatee,  refuse  to  execute  his 
power,  the  Court  will  direct  one  of  its  Masters  to  inquire  into  the 
intended  marriage,  and  determine  upon  its  propriety  ;  with  direc- 
tions to  receive  proposals  for  a  settlement  upon  the  legatee,  and 
the  issue  of  the  marriage,  in  the  event  of  the  marriage  being  found 
suitable,  (e) 

A  Court  of  equity,  in  sitting  in  judgment  upon  the  conduct  of  indi- 
viduals entrusted  with  the  power  of  assenting  to,  or  dissenting  from, 
the  marriages  of  legatees  (on  the  due  exercise  of  which,  the  rights 
of  those  legatees  are  either  to  vest  or  be  forfeited,)  substitutes  itself 
in  the  place  of  the  testator.  It  acts  upon  what  it  presumes  to  have 
been  his  intention  in  imposing  the  condition,  and  with  reference  to 
the  persons  who  are  actors  in  the  performance.  Hence  arise  the 
rules  and  distinctions  established  by  the  cases  upon  this  subject. 
And— 

FIRST,  although  consent,  to  the  marriage  of  a  legatee,  may  not 
be  so  given,  as  regularly  to  fall  within  what  may  be  rationally  con- 

(rf)  10  Ves.  245.     19  Ves.  18.          (e)  Goldsmid  v.  Goldsmid,  19  Ves.  368.  372. 


540  Of  Legacies  [Cn.  XIII. 

sidered  to  have  been  the  intention  of  the  testator,  yet  if  the  legatee 
act  upon  such  assent,  and  marry  in  the  persuasion  that  consent  has 
been  properly  obtained,  the  condtiion  will  be  holden  to  have  been 
sufficiently  performed  :  and  for  the  following  reasons.  The  irregu- 
larity was  not  imputable  to  the  legatee,  but  to  the  mistake  of  the 
person,  whose  consent  was  to  be  obtained.  The  legatee  intended 
to  act  in  obedience  to  the  condition  ;  but  was  misled  by  the  indi- 
vidual entrusted  with  the  power  to  assent.  Under  such  circumstan- 
ces, the  Court  considers  that  the  condition  being  so  performed,  is 
a  fulfilment  of  the  intention  of  the  testator  wiio  imposed  it. 

Suppose  then  the  condition  to  require  marriage  by  the  legatee 
with  the  consent  of  B.  The  testator  must  be  understood  to  mean 
that  B.  should  be  consulted  during  the  addresses  \vhic  h  preceded 
the  marriage.(/)  -  Yet,  if  the  legatee  be  .of  age,  and  B.  give  a 
general  consent  for  the  legatee's  marrying  any  person  whom  the 
latter  shall  choose,  who,  upon  the  presumed  regularity  of  such 
licence,  marries  without  .the  knowledge  of  B. ;  the  marriage 
will  be  considered  to  have  been  solemnized  within  the  true  intent 
and  meaning  of  .the  condition. 

Thus  in  Mercer  v.  Hall,(g)  a  legacy  was  given  in  trust  for  the 
plaintiff  "  upon  her  marriage  with  the  previous  consent  in  writing 
of  her  mother,  if  living,  but  if  then  dead,  with  such  consent  of  her 
father ;"  and  if  she  married  without  such  consent,  during  the  life 
of  her  father  and  mother,  or  either  of  them,  the  legacy  was  to  be 
settled  by  them  or  the  survivor  upon  her  and  her  children.  The 
plaintiff  married  after  the  decease  of  her  parents,  who  previously  to 
their  deaths  signed  a  paper-writing,  by  which  they  gave  "  free 
leave  and  consent  to  their  daughter  to  marry  whomsoever  she 
choosed  ;"  and  empowered  her  to  settle  and  dispose  of  the  legacy 
"  according  to  her  own  inclination."  The  question  was.  whether 
the  daughter's  marriage  was  sanctioned  by  such  consent  as  the  will 
required  )  And  Lord  .ihanley,  M.  R.  said,  he  was  clearly  of 
opinion  in  favour  of.  the  daughter  ;  1st,  because  consent  was  only 
necessary  during  the  lives  of  the  father  and  mother,  or  the  life  of 
the  survivor;  and  2dly,  because  the  testatrix's  intention  was  suffi- 
ciently answered  by  the  general  consent,  notwithstanding  she 
meant  that  there  should  be  a  consent  to  the  particular  marriage ; 
for,  if  the  material  part  of  the  condition  were  complied  with,  the 
bequest  was  good. 

Similar  in  principle  to  the  last  case  w  as  that  of  Pollock  v.  Croft. (h) 
There  Mr.  Fielding  bequeathed  the  interest  of  his  personal  estate 
to  his  mother  for  life.  After  her  death,  he  gave  the  capital  to  trus- 
tees, to  pay  the  interest  to  his  sister  Mary  so  long  as  she  continued 
single ;  and  if  she  married  with  the  consent  of  her  mother  in 
writing,  or  subsequent  to  the  mother's  death,  with  the  consent  of  Mr. 
Croft,  then  the  trustees  were  to  convey  to  her  his  residuary  estate. 
But  if  she  died  without  having  been  married  with  such  consent  as 
aforesaid,  or  should  marry  without  the  consent  before  made  requi- 
site, he  gave  the  property  to  his  brother.  Mary  did  not  marry 
during  the  life  of  her  mother  ;  after  whose  death,  and  after  attain- 
ing the  age  of  twenty-one,  Mr.  Croft  verbally  gave  her  a  general 

•     (/)  4Bro,  C.  C.  328.  -(5-)  Ibid.  327.  (A)  1  Merir.  181, 


SECT.  II.]  upon  Condition.  541 

consent  to  marry  whomsoever  she  pleased.  Subsequently  to  this 
general  license,  Mary  married  without  the  knowledge  of  Mr.  Croft; 
a  marriage,  which  he  afterwards  approved  of.  And  the  same  ques- 
tion arose,  as  in  the  preceding  case,  viz.  whether  the  marriage  was 
accompanied  with  the  consent  required  by  the  will.  And  Sir  W. 
Grant  decided  in  the  affirmative. 

SECOND.  Absolute  consent  once  given  cannot  be  retracted  upon 
any  consideration,  which  does  not  affect  the  propriety  of  having 
granted  such  consent  in  the  first  instance.  The  reason  seems  to  be, 
that  the  parties  are  considered  to  have  acted  upon  the  license,  and 
it  would  be-  doing  violence  to  their  feelings,  as  well  as  to  the  inten- 
tion of  the  testator,  to  permit  the  consent  to  be  countermanded  for 
any  reason,  which  did  not  prove  that  the  assent  ought  not  to  have 
been  Originally  given. 

If  then  executors,  guardians,  or  trustees,  approving  of  the  connec- 
tion, assent  to  it  without  qualification,  and  afterwards  dissent  be- 
fore the  marriage,  because  the  intended  husband  will  not  accede  to 
all  the  terms  of  the  settlement  proposed  by  them,  and  the  marriage 
nevertheless  takes  place  ;  the  condition  requiring  their  consent  will 
be  considered  as  well  performed ;  since  the  motive  for  retraction 
had  no  reference  to  the  suitableness  of  the  connection,  in  respect  of 
which  the  consent  was  given,  but  to  collateral  circumstances  which 
might  have  been,  but  were  not,  made  conditions  upon  which  the 
consent  should  depend. 

Under  this  head,  Lord  Eldon(i)  classed  the  case  of  Lord  Strange 
v.  Smith.(k)  The  question  was,  whether  the  plaintiff  was  to  have, 
jure  uxoris,  an  estate  for  life  in  real  estate  ;  or  whether,  as  the  mar- 
riage was  without  consent  of  the  lady's  mother,  the  rents  were  to  be 
in',trust  for  the  separate  use  of  the  daughter  as  directed  by  the  will1? 
The  cause  turned  upon  the  point,  whether,  under  the  circumstances 
the  daughter's  marriage  was  to  be  considered  as  solemnized  with 
the  previous,  consent  of  her  mother.  It  appeared  in  evidence,  as 
detailed  in  Lord  Hardwicke's  note  of  the  case,(J)  that  the  mother  had 
expressly  given  her  consent ;  the  daughter's  affections  were  entan- 
gled, and  afterwards  the  propositions  about  a  settlement,  not  having 
been  made  the  subject  of  any  qualification  as  to  the  consent  given, 
a  new  proposition  was  adopted ;  and  at  last  the  mother  positively 
insisted  upon  a  new  term.  The  husband's  father  was  averse  to  it, 
but  at  length  he  consented,  thinking  it  for  the  happiness  of  the  par- 
ties ;  but  then  the  mother  of  the  wife  (who  seems  to  have  been  of  a 
very  perverse  disposition,  the  moment  the  concession  was  made, 
said  her  daughter  never  should  marry  into  th'at  family.  Under 
those  circumstances,  Lord  Hardwicke  was  of  opinion  (approved  of 
by  Lord  Eldon,)  that,  a  consent  having  been  given  without  any  con- 
dition, every  thing  reasonable  agreed  to,  no  fair  objection,  either 
of  a  moral  or  a  pecuniary  nature,  it  was  a.  fraud  upon  the  affections 
of  the  daughter  to  retract  the  consent,  merely  from  caprice  and  per- 
verseness.(m) 

Merry  v.  Ryves{ri)  is  a  case,  in  which  the  decision  is  an  addi- 
tional authority  upon  the  present  subject. 

(i)  10  Ves.  242.      (fr)  Ambl.  263.      (0  So  stated  by  Lord  Eldon,  10  Ves.  242. 
(m)  See  D'Aguilar  v.  Drinfcwater,  2  Ves  &  Bea.  234.  («)  1  Eden,  1. 

VOL.  i.  3  Z 


542  Of  Legacies  [Cn.  XIII. 

There  Miss  Ryves  was  entitled  under  her  father's  will  to  a  por- 
tion of  1000Z.  charged  upon  lands,  provided  she  married  with  the 
consent  of  her  mother  and  brother  and  another  person,  &c.  But  if 
she  married  without  such  consent,  the. money  was  not  to  be  raised. 
The  plaintiff  Jnerry  (whose  father  was  a  man  of  property)  paid  his 
addresses  to  the  young  lady,  and  he,  by  letter,  requested  her  bro- 
ther's consent  to  the  union,  stating  his  belief,  that  he  had  won  the 
lady's  affections.  The  brother  in  answer  informed  Mr.  Merry,  "  that 
he  should  not  oppose  it ;  that  Mr.  Merry's  character  and  circum- 
stances were  extraordinarily  good,  and  that  he  should  leave  the  man- 
agement of  the  settlement  to  a  Mr.  Brucer,  by  whose  agreement  on 
the  settlement  he  would  abide."  Articles  were  accordingly  pre- 
pared, and  executed  ;  and  the  mother  and  the  other  person,  whose 
consents  were  required,  assented  ;  but  before  the  marriage  took 
place,  the  brother  and  Mr.  Merry  quarrelled,  upon  wjiich  the  former 
retracted  his  consent,  and  forbad  the  marriage,  but  without  effect. 
The  question  was,  whether  it  was  competent  for  the  brother  to  with- 
draw his  consent  from  such  a  motive  9  and  Lord  Northington  deter- 
mined in  the  negative. 

But  that  consent  to  a  marriage  is  incapable  of  being  withdrawn 
for  any  reason,  is  a  proposition  which  cannot  be  maintained ;  since 
it  might  be  the  duty  of  the  persons,  who  gave  the  consent,  to  coun- 
termand it.  As  a  general  principle,  therefore,  it  would  be  very  dan- 
gerous to  hold  ;  if,  at  a  particular  time,  a  person  in  loco parentis,  as 
guardian,  upon  a  conscientious  sense  of  duty,  think  himself  required 
to  consent,  which  he  accordingly  gives,  but  previously  to  the  mar- 
riage, is  properly  informed  of  circumstances,  which  ought  to  have 
operated  at  first,  to  make  him -withhold  his  consent,  that  such  per- 
son shall  not  afterwards  alter  his  mind.(o) 

THIRD.  Consent  to  marriage  may  be  given  conditionally,  and  the 
vesting  or  forfeiture  of  the  legacy  will  depend  upon  the  perform- 
ance, or  non-performance  of  the  condition. 

Thus  in  Dashwood  v.  Lord  Bulkeley,(p)  the  testatrix  directed  her 
trustees  to  apply  the  interest'  of  a  sum  of  money,  for  the  separate  use 
of  her  grand-daughter  Elizabeth  Callendar  for  life,  when  she  attain- 
ed twenty-one  or  married;  but  with  a  proviso  for  reduction  of  the 
legacy  to  4001.  a  year  for  life,  if  she  married  during  or  after  minority, 
without  the  consent  in  writing  of  her  executors  and  trustees,  Lord 
Bulkeky,  Sir  M.  W.  Ridley,  George  Bogg,  and  Mr.  Keate.  The 
residue  of  the  interest  was  given  over.  After  the  death  of  the  tes- 
tatrix, and  while  Elizabeth  was  under  age,  Mr.  Dashwood  paid  his 
addresses  to  her,  dnd  proposed,  through  his  solicitor,  to  Mr.  Bogg, 
to  settle  6000/.  upon  the  marriage ;  a  proposal,  which  Mr.  Bogg 
communicated  by  letter  to  his  co-trustees.  In  answer  to  which, 
Lord  Bulkeky  stated  in  effect,  that  with  reference  to  rank,  charac- 
ter, and  connection,  the  proposal  was  perfectly  agreeable ;  at  the 
same  time  referring  to  the  settlement,  which  he  requested  Mr.  Bogg 
to  see  was  a  proper  one.  The  other  trustees  gave  the  like  written 
consent  to  the  marriage,  upon  condition  that  the  settlement  was 
made.  The  settlement,  though  prepared,  was  not  executed  in  con- 
Co)  10  Yes.  242. 
( /O  Ibid.  230.  and  see  the  next  chapter  towards  the  conclusion  of  sect  1. 


SECT.  II.]  upon  Condition.  543 

sequence  of  the  death  of  Mr.  Dashwood's  father ;  after  which  event, 
Mr.  Dashwood  refused  to  make  or  execute  any  settlement ;  and  then 
the  executors  retracted  their  consent  by  a  written  notice.  The  mar- 
riage, nevertheless,  was  afterwards  solemnized  ;  and  Lord  Eldon 
confirmed  Lord  Rosslyn's  decree  (which  declared  that  Elizabeth 
was  only  entitled  to  the  400/.  a  year  for  life,  in  consequence  of  her 
marriage  without  the  consent  of  the  executors,  (upon  the  principle, 
that,  when  Mr.  Dashwood  distinctly  refused  to  execute  any  settle- 
ment, as  he  had  proposed  to  do,  and  which  formed  one  of  the 
grounds  for  the  consenting  of  the  trustees  to  the  connection,  it  was 
not  unreasonable  in  them  to  insist  upon  a  settlement,  and  to  with- 
draw their  consent  upon  a  refusal. 

Having  given  an  example  of  conditional  assent  when  the  condition 
was  effectual,  we  shall  next  produce  an  instance,  where  the  terms  of 
such  an  assent  were  held  to  have  been  performed,  and  therefore  the 
consent  absolute. 

In  D^Ji guitar  v.  Drinkwater.(q]  20,OOOZ.  were  vested  by  the  tes- 
tator in  his  two  sons  and  a  Mr.  Haywood  (his  trustees  and  execu- 
tors,) to  pay  to  his  daughter  Eliza;  the  interest  from  the  time  when 
she  attained  twenty-one,  until  she  married ;  and  if  she  married, 
whether  under  that  age  or  afterwards,  without  the  written  consent  of 
his  trustees,  or  of  those  then  living,  the  principal  and  interest  were 
to  be  settled  to  her  separate  use,  and  upon  her  issue ;  but  if  she 
married  with  such  consent,  10,000i.  of  the  fund  were  to  be  paid  to 
her,  and  the  remainder  settled  to  her  separate  use  and  appointment. 
Eliza  attained  twenty-one,  and  married  Captain  D'A'guilar  under 
the  following  circumstances.  Previous  to  the  marriage  of  Eliza,  she 
resided  with  Haywood,  through  whom  she  informed  her  brothers  of 
the  captain's  proposals.  Haywood  invited  the  captain  to  his  house, 
and  for  some  time  afterwards,  bis  addresses  were  permitted  without 
objection.  Differences,  however,  arose  upon  the  subject  of  settle- 
ment, and  the  captain's  quitting  the  army;  and  the  brother's  de- 
clared they  would  never  consent  to  the  connection.  But,  in  consi- 
deration of  their  sister's  feelings  and  attachment,  they  were  induced 
to  alter  their  resolution,  and  to  promise  to  give  a  written  consent, 
which  they  stated  they  had  done  in  a  letter  to  Hayivood.  The  fact 
was  so,  and  Haywood,  in  answer,  declared,  that  "  he  would  not  stand 
in  the  way  of  any  arrangement  his  co-trustees  might  think  proper  to 
make  with  regard  to  their  sister's  concerns  ;"  but  alluded  to  the  ne- 
cessity of  a  proper  settlement  being  made,  stating,  nevertheless, 
"that  he  mentioned  the  circumstance,  not  with  a  view  of  raising 
objections,  or  meaning  to  differ  from  his  co-trustees."  After  this, 
the  brothers  gave  an  unqualified  assent,  but  with  reluctance,  men- 
tioning it  to  be  given  in  consequence  of  a  promise  extorted  against 
their  judgment;  and  from  a  sense  of  duty  upon  an  apprehension  of 
their  sister's  life  being  in  danger.  The  consent  of  the  brothers  hav- 
ing been  thus  absolutely  obtained,  the  only  question  was,  whether 
Haywood  had  consented.  And  Sir  W.  Grant,  M.  II.  determined  in 
the  affirmative.  His  Honour  considered  Haywood's  assent  to  have 
been  conditional ;  and  his  letter,  when  simplified,  to  amount  to  no 

(y)  2  Ves.  &  Bea.  225. 


544  Of  Legacies  [Cn  .XIII. 

more  than  this,  "  if  you  (my  co-trustees)  consent,  I  will."     And  that, 
as  they  did  consent,  his  (HaywoocTs)  consent  was  virtually  included. 

An  observation  must  not  be  omitted,  that,  if  the  consent  to  a 
marriage  be  upon  condition  of  a  proper  settlement  being  executed 
in  pursuance  of  proposals  for  the  purpose,  but  before  the  settlement 
is  approved  and  executed,  the  parties  marry ;  yet,  if  the  settlement 
be  afterwards  executed,  the  condition  will  be  well  performed ;  and, 
as  it  seems,  upon  this  principle.  The  execution  of  the  instrument 
has  relation  to  the  period  when  the  treaty  commenced,  so  that,  by 
this  fiction,  the  settlement  being  completed  before  the  marriage, 
there  was  a  good  previous  assent  to  the  celebration.  Upon  this  sub- 
ject, Lord  Eldon  expressed  himself,  in  reference  to  the  settlement 
in  Dashwood  v.  Lord  Bulkeley  :  "  Strictly  speaking,  (if  the  authori- 
ties did  not  forbid  the  construction,)  the  natural  interpretation 
would  be,  that,  if  the  settlement  is  made,  the  consent  shall  follow ; 
and  the  mere  offer  will  not  do ;  but  in  many  of  the  cases,  though 
upon  the  treaty  the  intention  seemed  to  be  that  the  settlement 
should  be  before  marriage,  yet  a  settlement  after  marriage  has  been 
held  sufficient  to.  satisfy  such  a  conditional  offer. "(r) 

FOURTH.  When  consent  is  judicially  considered,  as  having  been 
obtained,  it  is  of  no  consequence  whether  the  persons,  upon  whom 
the  obligation  is  imposed  to  acquire  it,  be  mistaken  in  the  circum- 
stance, and  suppose  that  it  has  not  been  given. 

Accordingly  it  was  contended  in  the  case  of  D'Jlguilar  v.  Drink- 
water  last  stated,  that  a  letter  written  by  Captain  D'rfguilar  shortly 
before  his  marriage,  showed  he  did  not  conceive  the  consent  of  Mr. 
Haywood  had  been  obtained,  a  circumstance  of  no  little  impor- 
tance to  demonstrate,  that  Mr.  Haywood's  assent  had  been  with- 
holden.  But  Sir  W.  Grant  denied  this  conclusion,  and  thus  ex- 
pressed himself:  "  Whether  Captain  D'Jlguilar  had  never  seen  Mr. 
Haywood's  letter,  or  did  not  construe  it  as  I  do,  I  know  not.  The 
question  is,  not  as  to  what  he  thought  or  believed,  but  as  to  what 
actually  existed.  In  Campbell  v.  Lord  Netterville,  shortly  stated  in 
2  Ves.,(s)  it  appears  from  the  cases  in  the  House  of  Lords,  that 
the  parties  were  at  the  time  of  the  first  marriage  quite  ignorant  of 
the  circumstances,  which  were  held  to  amount  to  a  constructive  con- 
sent on  the  part  of  the  father  ;  samuch  so,  that  instead  of  insisting 
on  it  as  a  marriage  by  consent,  they  had  refused  to  answer  any  of 
the  interrogatories  in  the  bill,  as  tending  to  subject  them  to  a  for- 
feiture of  the  wife's  fortune.  Advantage  was  taken  of  that  silence 
in  the  appellant's  case,  where  it  is  said  that  it  is  inconsistent  with 
the  -answer  and  marriage  articles,  and  the  subsequent  marriage,  &c. 
It  is  accounted  for  by  the  respondent  in  this  manner,  that  they  were 
not  then  so  fully  informed,  as  they  were  afterwards  from  the  course 
of  the  evidence,  of  the  several  steps  taken  before-hand  by  Burton 
to  forward  the  marriage,  as  by  the  cross-examination  and  other 
evidence  appeared." 

FIFTH.  Express  consent  to  the  marriages  of  legatees  is  not  al- 
ways necessary.  It  may  be  implied  from  the  improper  conduct  of 
the  individuals  whose  assent  is  required  by  the  terms  of  the  condi- 
tions. 

(r)  10  Ves.  244,  (,)  p.  534.  stated  infra. 


SECT.  II.]  uport  Condition.  545 

It  cannot  be  supposed  that  a  testator,  in  requiring  the  consent  of 
relatives  or  strangers  to  the  marriages  of  the  objects  of  his  bounty, 
meant  that  they  should  abuse  the  confidence  reposed  in  them  and 
convert  it  into  an  instrument  of  oppression,  but  as  a  prudential  re- 
straint for  the  comfort  and  happiness  of  the  legatees.  Upon  this 
principle  it  is,  that  courts  of  equity,  in  exercising  their  power  and 
authority  upon  the  present  subject,  imply  the  necessary  consent 
when  it  is  withholden  by  the  persons  entrusted  to  give  or  deny  it, 
after  they  have  known  and  acquiesced  in,  or  otherwise  promoted, 
addresses  to  the  individuals,  the  propriety  of  whose  marriages  is  en- 
trusted to  their  care  and  vigilance. 

Hence  if  a  trustee,  &.c.  with  the  knowledge  that  the  lady,  whose 
marriage  is  to  be  with  his  consent,  is  receiving  addresses,  stand  by 
and  intimate  no  disapprobation, (t]  or  if  he  introduce  a  person  to 
her  who  embraces  the  opportunity,  and,  with  the  knowledge  of  the 
trustee,  continues  to. address  her  with  a  view  to  marriage,  without 
the  latter  endeavouring  to  prevent  it,  in  either  case  his  consent  to 
her  union  will  be  implied.  For  it  would  be  singularly  unjust,  and 
doubtless  inconsistent  with  the  testator's  intention  in  imposing  the 
condition,  to  permit  the  trustee,  after  a  mutual  attachment  had  been 
suffered  to  mature  under  his  sanction,  to  withhold  his  approbation 
to  the  marriage,  and  to  do  violence  to  the  feelings  and  affections  of 
the  parties.  The  maxim  therefore,  qui  tacit  satis  loquitur,  is  respect- 
ed in  those  instances  and  constructive  consents  have  been  looked 
upon  as  entitled  to  as  much  regard  as  if  conveyed  in  express  terms. 

Thus  in  Campbell  v.  Lord  Netterville,(u)  Mr.  Campbell  bequeath- 
ed to  his  grand-daughter  Catherine  Burton  60001.  payable  at  her 
marriage,  provided  it  was  concluded  with  consent  of  her  father  Sa- 
muel; but  if  she  dred  unmarried,  or  married  without  such  consent, 
the  money  was  limited  over.  Samuel  encouraged  proposals  by  Lord 
Nettervilie,  representing  his  daughter's  fortune  at  15,OOOZ.  but  after- 
wards drew  ba&k  because  he  could  not  make  good  his  part  of  the 
proposals.  The  parties  married  privately,  so  that  there  was  no  ex- 
press consent  of  the  father  obtained  ;  to  remedy  which  and  prevent 
the  forfeiture,  articles  were  framed,  making  a  proper  settlement,  and 
a  second  marriage  took  place  in  facie  ecclesiee.  This  was  admitted, 
and  the  probable  reason  of  the  father  drawing  back  was,  because 
the  bank  in  which  he  was  engaged  was  in  a  precarious  state.  It 
was  held  by  the  House  of  Lords,  that  the  marriage  having  been  en- 
couraged between  the  parents  till,  from  the  circumstances  of  one  of 
them,  he  could  not  give  the  whole  15,0001.  the  implied  assent  which 
had  been  given,  should  not  be  determined  or  prejudiced  by  that 
accident. 

Under  this  head,  Lord  Hardwicke  in  Strange  v.  Smith,(x)  placed 
the  case  of  Daley  v.  Sir  Edward  Desbouverie,  although  Mr.  Jltkyns 
in  his  report  of  it,(t/)  makes  his  Lordship  to  decide  the  case  upon  a 
letter,  as  amounting  to  a  conclusive  consent. 

In  that  case,  the  consent  to  the  marriage  of  Lady  Burke  was  con- 
fided to  three  trustees,  or  the  majority  or  survivors  of  them.  Mr. 
Daley,  after  continuing  his  addresses  to  that  lady  for  five  months 

(0  2  Vern.  580.     19  Ves.  1$.  (u)  Cited  in  2  Ves.  sen.  534.     10  Ves.  243. 

(or)  Ambl.  264.  (y)  2  Atk.  261. 


546  Of  Legacies  [Cn.  XIII. 

(but  whether  with  the  knowledge  of  any  of  the  trustees  does  not  ap- 
pear,) informed  Sir  Edirard  Desbouverie  (one  of  the  trustees)  of  his 
intentions  to  marry  Lady  .Burke,  and  made  proposals  for  a  settle- 
ment, which  Sir  Edward  took  down  in  writing  and  communicated 
them  to  his  co-trustees,  who  were  unanimous  in  their  being  inadmis- 
sible, as  the  interest  of  the  lady's  fortune  was  proposed  to  be  receiv- 
ed by  Mr.  Daley's  father  for  life  ;  but  they  agreed  upon  counter- 
proposals for  settling  upon  tli€  marriage  the  whole  of  the  lady's 
fortune,  allowing  her  and  her  husband  a  sufficient  yearly  sum  for 
their  support.  They  immediately  transmitted  Mr.  Daley's  proposals 
to  a  Mr.  Taylor,  in  the -employ  of  Lady  .Burke' s  family,  with  a  let- 
ter (that  was  written  only  a  few  days  before  the  marriage  of  the  par- 
ties,) in  which  they  stated  the  inclination  of  that  lady  to  marry  Mr. 
Daley;  their  being  strangers  to  Mr.  Daley  the  father;  requesting 
Mr.  Taylor  to  ascertain  the  father's  ability  to  make  the  settlement 
proposed  by  his  sori ;  and  recommending,  if  he  were  desirous  of  en- 
tering into  treaty;  that  the  counsel  of  the  family  should  be  consulted. 
The  trustees  then  mentioned  that  Lady  Burke  might  marry  better, 
and  introduced  the- passage  which  Lord  Hardwicke  is  repbrted  to 
have  considered  an  absolute  consent :  "  Yet  if  Mr.  Daley's  father 
will  make  the  settlement  proposed  (by  them  the  trustees,)  we  believe 
the  young  folks  are  too  .far  engaged  for  us  to  attempt  to  break  off 
the  match,  and  therefore  we  shall  be  obliged  to  consent  to  it."  Up 
to. this  period  there  appears  to  be  "nothing  like  an  unconditional  assent. 
The  trustees,  in  discharge  of  their  duty,  were  endeavouring  to  pro- 
cure what  they  considered  a  proper  settlement  upon  Lady  Burke, 
and  their  consent  to  the  marriage  was  expressly  limited  to  a  com- 
pliance with  their  proposals.  In'  thisx  there -was  nothing  either  vicious 
or  fraudulent.  There  were  further  negotiations  about  the  settle- 
ment, which  ended  in  nothing,  and  the  parties  married  without  any 
other  consent  by  the  trustees  than  before  detailed.  Yet  Lord  Hard- 
wicke determined, -that  the  trustees  had  given  a  sufficient  assent  by 
the  letter  before  stated. 

That  the  last  decision  must  be  considered  anomalous,  appears  from 
Lord  Eldon's  judicious  criticisms  upon  it.  "In  Lord  Strange  v. 
Smith,  Lord  Hardwicke  declares  that  the  case  of  Daley  v.  Desbouve- 
rie  went  upon  fraud,  i.  e.  upon  the  inclinations,  affections,  and  pas- 
sions of  the  young  people.  There  is  another  way  of  putting  it,  that 
the  execution  by  two  (for  the  consent  of  the  majority  was  sufficient 
there)  was  a  consent ;  but  Lord  Hardwicke  in  another  case  says, 
that  upon  this  subject  of  marriage  the  Court  will  construe  otherwise 
than  upon  other  subjects  ;  and  that  must  be  the  ground  upon  which 
he  held  the  execution  to  be  a  consent ;  otherwise,  I  think,  no  one 
would  say  it  was  a  consent ;  and  accordingly,  in  Lord  Strange  v. 
Smith,  his  Lordship  puts  it  not  upon  that  ground,  but.  upon  fraud. 
If  it  is  to  be  maintained  upon  that  ground  of  fraud  on  the  young 
people,  there  must  have  been  circumstances  we  are  not  quite  aware 
of;  for  that  letter  was  not  more  than  five  or  six  days  before  the  mar- 
riage. And  if  there  was  time  for  that  letter  to  come  to  the  know- 
ledge of  the  parties,  it  is  difficult  to  say  their  affections  were  entan- 
gled, &c.  in  so  short  a  period.  Taking,  however,  Lord  Hardwicke 
to  have  decided  upon  the  letter,  the  conclusion  is,  that  he  determined 


SECT.  II.]  upon  Condition.  547 

upon  his  own  view  of  its  meaning  ;  and  upon  such  a  point  of  con- 
struction, one  Judge  may  differ -from  another. "(#) 

If,  as  we  have  seen,  consent  to  marriage  will  be  implied,  upon  the 
mere  acquiescence  of  trustees,  &c.  in  the  courtship  prior  to  that 
event ;  a  fortiori,  where  a  trustee,  &c.  has  an  interest  in  the  pro- 
perty, upon  the  legatee's  marrying  without  his  assent,  and  he  en- 
courages the  marriage,  and  yet  affects  to  withhold  his  consent,  that 
consent  will  be  implied*;  for  his  conduct  in  not  having  expressly 
given  it  under  those  circumstances,  is  not  only  fraudulent  but  vicious, 
and  in  violation  of  the  confidence  reposed  in  him  by  the  testator. 
The  following  case  falls  within  this  principle : 

In  Mesgrett  v.  Mesgrett,(a]  Mrs.  Tanden  bequeathed  to  her  only 
child  Maria,  a  pearl  necklace  and  jewels;  but,  if  she  married  under 
twenty-one,  without  the  consent  of  the  testatrix's  executors,  or  the 
greater  number  of  them,  the  legacy  was  to  go  to  the  children  of  the 
testatrix's  sister  (wife  of  the  defendant  Mesgrett,)  and  she  appointed 
Mesgrett  and  two  other  persons  her  executors.  Maria  was  eleven 
years  old  at  her  mother's  death.  She  lived  some  time  afterwards 
with  CV,  one  of  the  executors,  and  was.  Mere  courted  by  the  plaintiff, 
her  husband,  the  son  of  Mesgrett  by  a  first  wife.  She  afterwards 
removed  to  the  house  of  the  executor  Mesgrett,  where  the  marriage 
was  had  with  his  privity,  although  he  now  insisted  that  the  legacy 
was  forfeited,  and  given  over  to  the  children  of  his  second  wife,  the 
testatrix's  sister.  The  other  executors  admitted  notice  of  the  court- 
ship, which  they  neither  contradicted  nor  disapproved  of,  nor  removed 
the  young  lady,  as  they  might  have  done:  Under  these  circumstances, 
the  Lord  Keeper  decreed  in  favour  of  Mary,  as  it  clearly  appeared 
there  was  at  least  a  tacit  consent,  the  will  not  prescribing  the  form 
to  be  in  writing  or  otherwise.  And  his  Lordship  imputed  fraud  to 
Mesgrett  in  first  promoting  the  marriage,  and  then  pretending  a  for- 
feiture had  been  incurred  for  want  of  a  consent,  in  order  to  procure 
the  legacy  for  his  children-by  his  second  wife. 

SIXTH.  Consent  to  the  marriage  of  a  legatee  will,  be  considered 
well  given,  and  the  condition  complied  with,  if  the  legatee  marry 
with  the  approbation  of  the  testator  in  his  life  time,  though  in  words 
the  testator  has  only  spoken  of  a  marriage  to  take  place  after  his 
death.  The  principle  is  this : — The  proper  marriage  of  the  legatee 
being  the  essence  of  the  condition,  the  purpose  is  answered  by  a 
marriage  under  the  eye,  and  with  the  consent  of  the  testator..  The 
condition,  it  is  true,  is  not  performed  according  to  the  letter,  but  it 
is  so  in  substance,  which  is  sufficient. 

Thus  in  Clarke  v.  Berkeley,(b)  under  a  devise  upon  trust  to  con- 
vey to  the  testator's  daughter,  in  case  she  married  wi,th  the  consent 
of  two  of  the  trustees  and  her  mother;  and  if  she  died  before  mar- 
riage, or  married  without  such  consent,  to  other  uses.  The  daughter 
having  married  in  her  father's  life  time  with  his  consent,  Lord  Cow- 
per  decreed  a  conveyance  according  to  the  will ;  declaring  the  con- 
dition to  be  dispensed  with,  the  consent  of  the  testator  himself  hav- 
ing been  obtained,  which  was  more  to  be  regarded  than  the  consent 

(z)  19  Ves.  19  &  12.  (a)  2  Vern.  580. 

(d)  2  Vern.  720.  8  Vin,  Abr.  154.  pi.  10.  in  marg.  &  C.  and  see  Clerke  v.  Lucy, 
ibid.  pi.  11. 


548  Of  Legacies  [Cn.  XIIL 

of  trustees,  to  whom  he  had  delegated  a  power  to  consent  in  case 
of  marriage  after  his  decease. 

In  Parnell  v.  Lyon,(c)  Sir  W.  Grant  proceeded  upon  the  same 
principle. 

In  that  case,  Mr.  Barton  bequeathed  all  his  personal  estate  in 
trust  for  his  children  equally.  The  shares  of  daughters  to  be  paid 
at  their  ages  of  thirty,  or  sooner,  in  case  they,  married  with  the  con- 
sent of  such  of  his  executors  as  mentioned -in  the  will.  But  if  any 
of  them  married  without  such  consent,  her  share  was  to  be  settled 
to  her  separate  use  for  life,  and  at  her  death  the  capital  was  limited 
over.  Elizabeth  (one  of  the  daughters)  married  under  twenty-one, 
before  the  death  of  her  father,  and  with  his  consent,  as  it  was 
alleged;  but  the  fact  was  not  in  evidence.  Conceiving  that  by 
such  marriage  she  was  entitled  to  the  immediate  payment  of  her  for- 
tune, upon  the  death  of  her  father,  although  she  was  far  distant  from 
the  age  of  thirty ;  the  suit  was  instituted.  And  Sir  W.  Grant  de- 
clared, that  if,  upon  inquiry  before  the  Master,  the  testator's  consent 
should  be  proved,  it  was  equivalent  to  a  marriage  with  consent  of 
the  executors  after  his  death,  and  would  equally  entitle  Elizabeth 
to  payment  of  her  portion. 

A  similar  decision  was  made  by  Sir  John  Leach,  V.  C.  in  the  case 
of  Wheeler  v.  Warner. (d)  In  that  case  Isaac  Warner  gave  10,000£. 
stock  to  his  wife  Mary  Warner  and  his  son  Simeon  Wqrner,  upon 
trust  to  pay  the  dividends  to  his  daughter  Sophia  Warner,  whilst  she 
remained  single,  or  until  she  married  with  the  consent  of  his  wife 
and  son,  or  the  survivor;  and  if  she  should,  after  his  decease,  marry 
with  such  consent  in  writing,  the  trustees,  or  the  survivor,  were  au- 
thorized to  advance  any  part  of  the  stock  (not  exceeding  one-third) 
to  the  husband  ;  but  if  she  married  without  such  coniept,  then  the 
testator  declared  other  trusts  of  the  whole  fund  for  the  benefit  of  his 
daughter  and  her  issue.  Sarah  Warner  married  Robert  Wheeler,  in 
her  father's  life  time,  and  after  the  testator's  death  a  bill  was  filed 
by  Mrs.  Wheeler  and  her  children  against  the  trustees,  her  husband 
and  others,  for  an  account,  and  to  have  the  rights  of  all  parties  as- 
certained. The  Master,  to  whom  it  was  referred  to  inquire  whether 
Mr.  and  Mrs.  Wheeler's  marriage  was  had  with  the  consent  of  the 
testator,  and  if  not,  whether  it  was  subsequently  approved  by  him, 
or  whether  he  was  afterwards  reconciled  to  them,  reported,  that  the 
marriage  took  place  without  the  consent  of  the  parents,  but  that, 
from  a  variety  of  facts,  he  found  that  the  testator  was  reconciled, 
and  that  a  friendly  intercourse  had  subsisted  between  him  and  Mr. 
and  Mrs.  Wheeler,  down  to  the  time  of  his  death.  The  preceding 
cases  of  Parnell  v.  Lyon  and  Clarke  v.  Berkeley  were  cited  in  be- 
half of  the  plaintiffs  and  Mr.  Wheeler.  Sir  John  Leach,  V.  C.  ob- 
served, that  the  authorities  cited  established  the  proposition,  that  a 
marriage  in  the  life  time  of  the  father,  with  his  consent  or  subse- 
quent approbation,  was  equivalent  to  a  marriage  after  his  death  with 
the  consent  of  the  trustees,  and  the  directions  must  be  given  ac- 
cording to  the  provisions  of  the  will  in  that  event ;  and  decreed, 
that  the  husband  was  entitled  to  one-third  part  of  10,OOOZ.  stock. 

A  similar  determination  was  made  by  the  same  Judge  in  the  re- 

(c)  1  Ves.  &  Bea.  479.  (d)  i  Sim.  &  Stu.  304. 


SECT.  II.]  upon  Condition.  549 

cent  case  of  Smith  v.  Cawdery,(e)  wherein  a  bequest  was  made  to 
Maty  Young  on  the  day  of  her  marriage  with  any  other  person  than 
Henry  Twynam ;  and  if  she  married  him,  then  over.  She  married 
H.  Twynam  in  the  life  time  and  with  the  consent  of  the  testator, 
and  she  was  held  entitled  to  the  bequest.  ' 

(A.  4.) — Whether  conditions  requiring  consent  will  be  con- 
sidered fully  performed  by  the  first  marriage  with  the  required  as- 
sent. 

The  intention  of  testators,  in  imposing  restraints  upon  the  mar- 
riages of  their  children,  is  to  guard  the'inexperience  of  youth  from 
surprise- and' "imposition,  by  the  prevention  of  hasty  and  inconside- 
rate engagements.  A  court  of  equity,  therefore,  acting  upon  the 
authority  of  this  intention,  will  limit  the  general  terms  of  the  con- 
dition to  an  assent  to  one  marriage  only.  If  then  a  legatee  once 
marry  with  consent,  whether  during  the  life  of  the  testator  impos- 
ing the  condition,  if  with  his  approbation  ;  or  afterwards,  with  the 
proper  authority  ;  as  the  condition  has  heen  complied  with,  it  be- 
comes extinct ;  so  that  a  second  marriage  without  consent  will  not 
prejudice  the  legatee. 

In  Hutcheson  v>Hammond,(f]  Jinn  Hutcheson  (by  mistake  named 
Jones)  was  entitled  to  a  legacy  of  1500L- under  the  testamentary 
appointment  of  her  step-mother  Frances,  payable,  after  the  death  of 
her  father.  By  a  codicil,  the  testatrix  declared,  that  if  Ann  married 
during  the  life  of  her  father,  without  his  written  consent,  the  legacy 
was  to  go  according  to  his  appointment.  Ann  married  with  the  re- 
quisite assent;  and  it  became  necessary  to  consider,  whether,  if  she 
became  a  widow  in  the  life-time  of  her  father,  and  married  again 
without  his  consent,  a  forfeiture  of  the  legacy  would  be  incurred. 
And  Butter,  J.  declared  in  the  negative. 

In  Crommelin  v.  Crommelin,(g)  Lord  Rosslyn  adopted  the  prin- 
ciple of  the  preceding  case,  holding  the  condition  not  to  be  appli- 
cable to  a  daughter,  who  married,  and  became  a  widow  during  her 
father's  life 

That  was  a  bequest  in  trust  for  the  testator's  natural  daughters 
Mary,  Juliana  and .  Hannah  Barker,  payable  at  certain  ages,  or 
sooner  upon  their'  marriages  with  consent  of  the  testator's- trustees, 
or  the  survivors ;  with  dispositions  of  proportions  of  their  shares 
upon  their  marrying  without  such  consent.  Juliana  being  in  India, 
married  before  the  death  of  her  father,  with  the  consent  of  one  of 
the  trustees,  and  with  the  subsequent  approbation  of  her  father ;  in 
whose  life-time  she  became  a  widow,  and  married  again  shortly 
after  his  death  (being  still  in  India  and  ignorant  of  his  will)  with 
the  consent  of  the  same  trustee.  Juliana  claimed  her  portion,  but 
her  right  was  disputed  upon' the  ground,  that  at  the  time  of  her 
second  marriage  with  consent  of  one  trustee  only,  she  was  an  object 
of  the  above  condition,  with  which  she  had  not  complied.  But  Lord 
Rosslyn  was  of  a  contrary  opinion ;  observing,  in  the  delivery  of  a 
very  elaborate  judgment,  that  there  was  nothing  in  the  will  to  show 
a  second  marriage  to  be  in  the  testator's  contemplation  ,  and  he  de- 
cided the  case  upon  the  principle, 'that  Juliana  having  married  (with 

(<?)  2  Sim.  &  Stu.  358.       (/)  3  Broi  C.  C.  128.  146.       (,§•)  3  Ves.  227.  see  ante,  p. 
VOL.   I.  4    A 


550  Of  Legacies  [Cn.  XIIL 

the  subsequent  approbation  of  the  testator,)  and  being  a  widow  at 
his  death,  was  not  intended  to  be  subject  to  the  condition. 

(A.  5.)— When  conditions  requiring  consent  to  marriages  are  to 
be  limited  within  the  periods  appointed  for  their  payment. 

Conditions  of  marriage  with  the  consent  of  parents,  guardians, 
&c.  are  generally  limited  to  the  times  when  the  legacies  vest  or  are 
made  payable  ;  so  that  if  there  wrere  two  periods  mentioned  in  a  will, 
upon  either  of  which  a  legacy  was  to  vest  or  be  paid,  vjz.  at  the 
legatee's  age-  of  twenty-one^or  marriage  with  consent,  with  a  clause 
of  forfeiture  upon  marriage  without  consent ;  a  court  of  equity 
will  construe  such  clause  as  having  relation  to  a  marriage  under  the 
specified  age.  Hence,  if  the'  legatee  attain  that  age,  compliance 
with  the  condition  is  unnecessary  ;  for  it  has  become  extinct  in 
consequence  of  the  legatee's  attaining  twenty^one.(A)  This  is 
firmly  established  by  the  following  authorities  : 

In  Desbody  v.  Boyville,(i)  stock  was  vested  in  trustees  to  apply 
the  dividends  for  th£  benefit  of  the  testator's  grand-daughter  during 
minority,  or  until  her  marriage ;  with  a  direction  to  transfer  the 
fund  to  her  when  she  attained  twenty-one,  or  should  be  married 
with  the  consent  of  A.  and  B.  But  in  case  she  married  without 
such  consent,  the  stock  was  to  be  settled  upon  herself  and  chil- 
dren ;  and  if  she  left  no  issue,  the  stock  was  limited  over.  The 
grand-daughter,  not  having  married  during  minority,  claimed  im- 
mediate payment  of  her  legacy,  in  which  claim  she  must  have  fail- 
ed, if  the  transfer  was  to  await  the  contingency  of  her  marriage 
with  the  consent  of*  A.  and  B.  But -Lord  King,  C.  was  of  opinion, 
that,  as  the  grand-daughter  had  attained  twenty-one,  .she  took  a 
vested  absolute  interest  in  the  stock  ;  .and  that,  since  the  testator 
expressly  directed  the  fund  to-  be  transferred  to  her  at  that  age,  the 
condition  annexed  to  her  marriage  must  be  restrained  to  a  marriage 
before  twenty-one  :  for  if  the  stock  were  transferred  to  her  at  that 
period  as  the  will  prescribed,  the  executors,  in  the  event  of  her 
afterwards  marrying  without  the  consent  of  Jl.  and  B.  could  not 
upon  her  death  transfer  the  fund  to  her  children  ;  or,  if  no  issue,  to 
the  remainder-man.  Whence  it  was  clear,  that  the  testator  could 
not  intend  there  should  be  any  .forfeiture,  but  only  in  the  event  of 
the  grand-daughter's  marriage  without,  consent  under  twenty-one. 
His  Lordship,  therefore,  ordered  the  stock  to  be  transferred  to  her. 

Lord  Camden  made  a  similar  decision  in  Knapp  v.  Noyes,(k) 
where  the  testator  gave  to' each  of  his  five  children  15001.  payable 
to  daughters  at  the  times  of  their  marriages  with  the  consent  of  his 
executors,  or  of  the  survivor  ;  but  if  any -of  them  married  without 
such  consent,  she  was  only  to  receive  5001.  part  of  that  sum,  and 
the  residue  was  limited  over.  Mary,  one  of  the  daughters,  never 
married,  and  died  after  attaining  twenty-one.  The  will,  contained 
a  clause  giving  maintenance  to  the  children,  until  their  portions 
became  payable ;  and  another  clause  appointing  his  executors 
guardians  for  them.  The  question  was,  whether,,  as  Mary  never 

(A)  See  ante,  p.  531.     For  an  instance  where  this  doctrine  was  considered  inap- 


SMeriv.  116.  {*)  Ambl.  662. 


SECT.  II.]  upon  Condition. 

married  with  consent,  her  representatives  were  entitled  to  her  por- 
tion ?  And  Lord  Camden  determined  in  their  favour  ;  observing, 
it  appeared  from  the  whole  will,  that  marriage  with  consent  was 
not  the  sole  period  appointed  for  payment  ;  but  also  the  age  ot 
twenty-one.  That  this  was  obvious  from  the  appointment  ot  the 
executors  to  be  guardians  during  the  minority  of  the  legatees,  and 
consequently  to  assent  to  their  marriages  while  infants  ;  and  the 
gift  of  maintenance  also  showed  the  intent  that  twenty-one  was  one 
of  the  periods  when  the  portions  should  be  paid,  as  such  a  provi- 
sion was  generally  confined  to  the  infancy  of  legatees,  tor  thos 
reasons,  the  Court  declared  the  condition  of  marriage  with  consent, 
meant  a  marriage  at  an  earlier  time  than  twenty-one  ;  so  .that  Mary, 
having  attained  that  age,  took  -an  absolute  interest  discharged  tr 
such  condition. 

Upon  the  principle  of  those  cases,  if  a  legacy  be  directed  to  be 
paid  at  the  expiration  of  a  year  after  "the  testator's  death,  with  a 
condition  of  revocation,  if  the  legatee  married  B.,  and  a  limitation 
over  in  that  event  ;  should'  the  legatee  survive  the  time  of  payment, 
i.  e.  the  year,  and  then  marry  B.,  she  will  be  entitled  to  the  legacy 
notwithstanding  the  marriage. 

This  was  decided  in  Os&ora  v.  Brown,(l)  where  the  testator  gave 
to  his  daughter  Mary  Brown  '4001.,  to  be  paid  in  twelvemonths 
after  his  death  ;  but  if  she  married  John  Osborn,  of,  &c.  then  h 
revoked  and  made  void  the  legacy,  and  gave  her  in  lieu  ot  it 
shilling,  and  no  more.  Mary  continued  unmarried  about  fourteen 
months  "after  the  decease  of  the  testator,  and  then  married  Mr.  Us- 
born.  Her  right  to.  the  legacy  having  been  disputed  in  conse- 
quence of  that  marriage,  Lord  Rbsslyn  ordered  it  to  be  paid  to-  her 
with  interest;  upon  the  principle,  that  the  event,  upon  which  the 
bequest  was  revoked,  was  to  be  referred  and  restrained  to  the  pe- 
riod during  which  the  payment  was  suspended. 

fa.!  But  suppose  a  legatee,  where  the  bequest  is  made  to  her  at 
twenty-one,  or  sooner  upon  a  marriage  with  consent,  with  a  limita 
lion  over  if  she  die  before  that  age,  or  be  married  with  such  consent, 
marries  'during  minority  without  it,  and  afterwards  attains  twenty- 
one.     It  may  be  asked,  Will  she  nevertheless  be  entitled  to  the  le- 
eacv  <?  It  seems  to  be  the.  better  opinion  that  she  is  so  entitled,-  and 
upon  this  construction  of  the  bequest:  The  legatee  was  intended  1 
have  the  legacy  at  twenty-one,  without  any  qualification,  if  she  hvec 
so  long  ;  but  as  she  might  marry  before  '-that  age,  and  have  occasion 
for  the  money,  and  yet  die  a  minor  j  she  was  also  intended  to  take 
the  legacy  in  that  event,  provided  the  marriage  took  place  with  the 
required  consent.    •  It  follows,  from  this  interpretation,  that  the  efl 
of  the   condition  depends  upon  the  contingency  of  death  under 
twenty-one;  so  that  upon  the  legatee's  attaining  that  age   she  will 
take  the  legacy,  as  if  no  condition  whatever  had  been  impoi 


Accordingly,  in  Austen  v.  Hobe^(m)#esiduary  personal  estate 
was  bequeathed,  in  trust  for  the  testator's  son  Henry  Austen,  when 
and  so  soon  as  he  attained'  twenty-one,  or  married  before  i 
with  the  previous  consent  of  guardians,  or  the  majority  of  1 

' 


(»013Ves.l26.130. 


552  Of  Legacies  [Cn.  XIII. 

living  :  "  but  if  he  should  not  attain  twenty-one,  or  marry  before  that 
age  with  such  consent  and  approbation  as  aforesaid,"  the  property 
was  given  over  to  the  testator's  daughters.  Henry  a'ttained  the  age 
of  twenty-one,  but  married  during  minority,  without  the  previous 
consent  of  his  guardians.  And  Sir  W.  Grant  declared,  that  Henry, 
upon  attaining  twenty-one,  became  absolutely  entitled  to  the  per- 
sonal estate. 

The  same  Judge  made  a  similar  decision  in  Knight  v.  Cameron,(n) 
where  the  bequest  was  to  Miss  Douglas  of  1000Z.  to  be  paid  as  soon 
as  she  should  attain  twenty-one,  and  in  case  she  lived  to  attain  that 
age,  "and  not  otherwise^"  or  Upon. her  marriage,  which  should  first 
happen,  provided  she  married  with  the  consent  of  the  testator's  ex- 
ecutors^  "  and  not  otherwise;"  but  if  she  died  before  twenty-one,  or 
being  married  with  such  consent  as  aforesaid,  the  legacy  was  other- 
wise disposed  of.  •  Miss  Douglas  married  without  any  consent,  and 
was  a  minor  at  .the  time  of  the  decree.  Upon  a  question  as  to  her 
right  to  the  legacy,  Sir  W.  Grant  said,  the  condition  was  precedent, 
and  that  Miss  Douglas,  before  she  could  make  a  title  to  receive  the 
money,  must  predicate  of  herself,  either  that  she  attained  twenty-one, 
or  had  married  with  consent.  The  latter  she  could  not  do,  and  -the 
former  period  had  not  arrived  ;  so  that  her  title  at  present  was  defec- 
tive. His  Honour,  however,  made  the  following  declaration ;  that 
Miss  Douglas,  not  having  attained  twenty-one,  nor  married  with 
consent,  is  not  now  entitled  :  a  declaration  which  implied  her  right 
upon  arriving  at  the  above  age.. 

The  terms  in  which  the.  condition  is  expressed  must  decide  the 
question,  whether  the  marriage  without  consent  before  twenty-one 
will,  or  will  not  be  fatal  to  the  legatee.  Tlie  above  are  instances, 
where,  notwithstanding  breaches  of  the  conditions,  the  legatees  were 
declared  entitled  to  the  legacies,  upon  attaining  their  ages  of 
twenty-one.  In  those  cases,  the  testators  did  not  declare  that  mar- 
riage without  consent  should  determine  the  rights  of  the  legatees, 
but.  merely  that  they  should  not  have  them  earlier  than  twenty-one, 
unless  they  married  with  consent.  It  was  the  intention  (as  has  been 
observed,)  that  the  legatees  should,  at  all  events,  receive,  their  le- 
gacies upon  attaining  twenty-one.  But  when  the  conditions  are  so 
framed,  as  to  determine  the  interest  of  the  legatees  upon  marrying 
without  consent,  as  where  the  required  assents  operate  as  conditions 
subsequent,  non-compliance  with  them  will  be  fatal.  For  example  : 
if  the  .bequest  be  to  Jl., 'to  be  paid  at  twenty-one  or  marriage  ;  but 
if  w2.  die  under  twenty-one,  or  marry  without  the  consent  of  J3.,  then 
to  C.;  marriage  without  consent  before  twenty-one  will  be  a  forfei- 
ture of  the  legacy. 

An  instance  of  this  kind  occurred  in  Chauncy  v.  Gray don. (o) 
There  trustees  were  directed  to  transfer  South  Sea  stock  to  each 
child  of  the  testator's  nephew  at  twenty-one  or  marriage,  they  mar- 
rying with  the  consent  prescribed  in  the  will ;  "  and  in  case  any  of 
the  children  died  before  twenty-one,  or  should  marry  without  con- 
sent as  aforesaid,"(jp)  their  shares  were  to  go  over.  Two  of  the 

(n)  14Ves.  389.  (o)2Atk.  616. 

(/*)  See  Sir  W.  Grant's  observations  in  regard  to  conditions  precedent  and  sub- 
sequent, 14  Ves.  392. 


SECT.  II.]  upon  Condition.  553 

children  married  during  minority  without  consent ;  and  it  was  con- 
tended, that  if  they  lived  to  attain  twenty-one,  they,  notwithstanding 
their  marriages  without  consent,  would  be  entitled  to  tlieir  legacies. 
But  Lord  Hardwicke  was  of  a  contrary  opinion,  and  said,  "  it- was 
the  intention  of  the  testator  that  there  should  be  no  new  time  which 
should  arise,  but  the  legacy  to  be  absolutely  gone." 

It  is  observable,  .that  the' commencement  of  the  clause  containing 
the  last  bequest  was  similar  to  the 'cases  before,  stated,  but  the  clause 
by  which  the  legacy  is  given  over  is  different.  There  the  legacies 
were  given  on  precedent  conditions,  upon  the  happening  of  one  of 
two  events,  the  attainment  of  twenty-one  or  a  marriage  with  consent; 
with  a  mere  declaration,  that  if  neither  of  them  happened,  the  lega,- 
tees  were  not  to  have  the  legacies.  Hence,  if  either  Contingency  did 
happen,  'the  condition  was  satisfied ;  whereas,  in  the  last  case,  the 
clause  limiting  over  .the  legacy  showed  that  a  subsequent,  not  a  pre- 
cedent, condition  was  intended.  The  interest  previously  vested  was 
expressly  determined  and  given- over,  if  the  legatee  die'd  before  twen- 
ty-one, or  married  without  consent ;  consequently,  it  was  the  inten- 
tion of  the  testator,  as  Lord  Hardwicke  observed,  that  there  should 
be  "  no  new.  time  which  should  arise,  but  the  legacy  to  be  absolutely 
gone."  The  distinction  is  attended  with  nicety,  but  appears  to  be 
substantial,  and  it  reconciles  the  last  authority  with  the  cases  before 
stated. 

(A.  6.) — As  to  conditions  requiring  marriages  with  consent  being 
considered  in  terrorem.(q) 

The  doctrine  upon  this  subject  is  thus  stated  by  Lord  Hardwicke  : 
"  It  is  an  established  rule  in  the  Civil  law,  and  has  long  been,  the 
doctrine  of  a  court  of  Equity,  that  where  a  personal  legacy  .is  given 
to  a  child  on  condition  of  marriage  with  consent,  this  is  not  looked 
upon  as  a  condition,  but  as  a  declaration,  of  the  testator  in  terrorem.(r) 
However  unsatisfactory  the  reason  of  the  rule  may  appear,  as  it  is 
difficult  to  suppose  that  a  testator  made  use  of  expressions  in  a  sense 
different  from  their  obvious  import ;  the  rule  nevertheless  is. clearly 
settled  to  the.  extent  of  Lord  Hardwicke' s  statement,  where  the  con- 
dition is  subsequent,  and  there  is  no  limitation  over  upon  a  breach 
of  it.,  But  that  it  is  so  settled  where  the  condition  is  precedent,  is 
not  so  certain,  as  has  been  shown  in  a  preceding  page.(s)  Lord 
Hardwicke  said,  in  the  case  before  referred  to,(£)  "  he  did  not  find 
that  the  Civil  or  Ecclesiastical  law  made  any  distinction  between 
conditions  precedent  and  subsequent ;  but  in  both  cases,  the  condi- 
tion, as  such,  was  merely  void."  .This  is  certainly  correct,  if  under-, 
stood  of  that  law  as  at  first  established  ;  but  not  so  sure,  if  it  include 
all  the  modifications  and  alterations  of  the  rule  made  from  time  to 
time  in  the  latter  ages  of  the  Roman  state. (u)  One  of  those  modi- 
fications is  thus,  stated  by  Swinburne :  "  The  testator  doth  make  thee 
his  executor,  or  give  thee  100L  if  thou -do  marry  with  the  counsel  or 
advice  of  his  brother.  If  thou  do  marry  without  his  counsel  or  ad- 
vice, thou  art  excluded. "(a?)  But  he  adds,  if  the  advice  be  asked, 
the  legatee  was  not  obliged  to  follow  it :  a  strange  conclusion,  to 

(?)  Ante,  pp.  508.  530.     (r)  Reynish  v.  Martin,  3  Atk.  331.     (s)  p.  Ante,  510. 
(0  Reynish  v.  Martin,  3  Atk.  332.  (w)  Ante,  p.  508. 

(:r)  Swinb.  pt.  4.  sect.  12.  art.  17. 


554  Of  Legacies  [CH.  XIII. 

reject  the  substance  for  the  shadow.  However",  this  limitation  of  the 
ancient  rule  bears  closely  upon  the  present  subject;  and.it  is  but 
reasonable  to  doubt  whether,  in  the  times  before  alluded  to,  the 
consent  of  parents  or  guardians,  to  the  marriages  of  their  children 
or  wards  might  not  have  been  the  subjects  of  good  conditions.  The 
affirmative  of  the  proposition  is  the  more -probable,  since  the  rule  of 
the  Civil  law,  as  finally  settled,  enforced' every  condition  in  restraint 
of  marriage,  which  did  not  directly  or  indirectly  import  an  absolute 
injunction  to  celibacy. (y)  For  those  reasons,  it  is  conceived,  that 
when  the  condition  is  precedent,  requiring  the  consent  of  'A.  to  the 
marriage  of  B.,  B.  must  obtain  the  consent,  whether  the  legacy' be 
Ijmited  over  or  not.  That  B.'  must  <io  so,  if  the  consent  were  restrict- 
ed to  his  marriage  under  twenty-one  or  twenty-eight,  is  clearly  set- 
tled by  the  case's,(2)  upon  the  principle  of  necessity  for  B.  to  answer 
the  description  in  the  bequest.  And,  if  the  restraint  be  permitted 
up  to  the  age  of  twenty-eight,  there  appears  to  be  no  solid  reason 
why  the  condition  should  nbt  be  equally  good,  where  a  testator  thinks 
proper  to  continue  the  partial  restriction  during  the  life  of  the  lega- 
tee ;  for  what  other  limit  can  be  satisfactorily  defined.  The  requi- 
sition of  consent  may  in  this  instance  be  equally  proper,  as  in  the 
examples  just  produced,  as  from  the  mental  weakness  of  the  lega- 
tee, &c. 

With  respect  to  conditions  subsequent,  it  is  now  an  established 
rule  (however  unreasonable  its  foundation,)  that,  when  there  is  no 
bequest  over  upon  non-compliance  with  a  condition  requiring  con- 
sent to  marriage, 'the  legacy  is  single  and  absolute;  the  condition 
being  rejected  as  a  mere  declaration  in  terrorem.  And  it  will 
make  no  difference,  whether  there  •  be  no  disposition  whatever  of 
the  fund,  upon  a  breach  of  the  condition,  or  the  original  legacy  be 
reduced  upon  the  happening  of  that  event. 

Accordingly  in  Garret  v.  Pritty,(a)  the  testator .  gave  3000Z.  to 
his  daughter,  part  of  it  to  be  paid  to  her  at  twenty-one,  or  on  mar- 
riage, which  should  first  happen,  and  the  remainder  to  be  paid  to 
her  at  the  expiration  <of  two  years  after  attaining  that-  age  or  mar- 
rying, which  should  first  take  place.  But  if  she  died  before  twenty- 
one  or  marriage,  he  gave  the  3000L  to  the  defendant  Pritty,  a 
disposition  which  was  disappointed  by  the  daughter's  marriage  after 
mentioned.  But  the  testator  declared,  in  a  subsequent  part  of  the 
will,  that  if  his  .daughter  married  before  twenty-one  without  the 
consent. of  his  worthy  friend  (a  Mr.  Scriven,)  in  case  he  were  then 
living,  the  legacy  should  cease  and  be  void,  and-  he  gave  -to  his 
daughter,  in  lieu  of  it,  500Z.  only.  The  daughter  married  without 
the  consent  and  during  the  hfe  of  Scriven;  and,  it  is  presumed, 
under  twenty-one.  Yet  it  was  declared,  that  she  was  entitled  to 
the  entire  legacy  of  3000Z. ;  and  principally,  as  Mr.  Vernon  says, 
because  it  was  not  expressly  devised,  over.  But  he  was  wrong  in 
stating  that  the  money  was  in  the  above  event-  directed  to  fall  into 
the  residue  ;  for  the  will  contained  no  such  direction. 

The  next  case  is  an  authority  that,  where  there -is  no  express 
disposition  of  the  legacy  upon  a  marriage  without  the  requisite  as- 

(y)  2  Dick.  721.  (z)  See  ante,  p.  508.  et.  sea. 

(a)  2  Vern,  293.  stated  from  Reg.  Lib.  SMeriv.  120 


SECT.  II.]  upon  Condition.  555 

sent,  but  a  power  of  abridging  it  is  delegated  to  another  person,  the 
condition  will  be  considered  equally  in  terrorem,  as. if  the  diminution 
of  the  legacy  had  been  provided  by  the  testator  in  his  will. 

-In  Wheeler  v.'Bingham,(b)  1500J.  were  given  to  each  of  the  tes- 
tator's grand-daughters,  .who  should  be  living  and  unmarried  at  his 
death ;  and  he  desired  that  none  of  them  should  marry  without  the 
consent  of  their  father  and  mother,  or  the  survivor;  and  therefore, 
if  any  of  them  married  without  such  consent,  he  revoked  their  lega- 
cies, declaring  that  they  should  not  -be  entitled  to  any  benefit  under 
his  will,  further  than  what  their  father  and  mother,  or  the  survivor, 
should  direct.  And  he  ordered  that,  after  satisfaction  of  his  lega- 
cies, if  any  money  remained  in  the  hands  of  his  trustees,  the  same 
should  be  paid  to  his  daughter-  for  life,  and  after  her  death  to  the 
defendant  Bingham.  Mrs.  Wheeler  (one  of  the  grand-daughters) 
married  during  the  life  of  her  father  and  mother,  without  their  con- 
sent, and. she  notwithstanding  claimed  the  legacy  of  1500/.  Lord 
Hardwicke  determined  the  following  points: — 1st,  that  the  condi- 
tion was  subsequent ;  2d,  that  the.  revocation  of  the  legacy,  in  the 
event  of  a  non-compliance  with  the  condition,  was  not  equivalent 
to  a  limitation  over  of  it  ;  a  determination  in  conformity  with  the 
last  case  ;  and,  3d,  that  the  declaration,  in  regard  to  the  legatees 
not  being  entitled  to  any  further  benefit  under  the  will,  than  what 
the  father  and  mother,  or  the  survivor,  should  direct,  did  not  operate 
as  a  devise  over,  as  it  only  amounted  to  a  power  in  both,  or  the 
survivor,  to  abridge  the  legacy  ;  which  had 'no  other  effect,  than  if 
the  testator  had  reduced  the  bequest  in  his  will,  as  in  the  preceding 
case ;  and  that  so  much  of  the  funds  as  was  not  appointed  under 
the  power,  if  exercised,  would  fall  into  the  residue;  a  mode  of 
devolution  not  equivalent  to  an  express  direction  that  it  should  sink 
into  the  estate  when  disposed  of  by  the  will. 

It  appears  from  the  judgments  in  the  preceding  cases,,  that  if  the 
legacy  be  limited  over  to  another  person,  upon  fhe  marriage  of  the 
legatee  without  consent,  the  executory  bequest  will  take  effect 'upon 
a  breach  of  the  condition,  which  in  this"  instance  is  not  considered 
in  terrorem.  "The  true  ground  (says  Lord  Hardwicke,}  upon 
which  a  court  of  'equity  has  suffered  the  condition  to  effectuate,  is 
not  the  intention,  but  the  right  of  a  third  person  ;  the  being  given 
over  and  vesting  in  that  person,  if  the  condition  be  not  performed."(c) 
In  illustration  of  this,  his  Lordship  remarked,  if  the  testator,  in 
the  last  case,  had  said  that,  upon  his  grand-daughter  marrying 
without  consent,  he  revoked  the  legacy,  and.  gave  it  to  the  father  or 
mother  to  dispose  of,  such  a  declaration  would  have  been  a  devise 
over.(d) 

An  example  of  this  kind  is  afforded  by  the  case  of  Stratton  v. 
Grymes,(e)  in  which  Mr.  Stratton  (a  citizen  of  London,)  having  issue 
a  son 'and  daughter,  bequeathed  two-thirds  of  his  legatory  part  to 
his  daughter  ;  but  if  she  married  under  twenty-one  without  the  con- 
sent of  her  brother,  and  his  kinsman  (two  of  his  executors,)  then 
5001!.  should  be  deducted  '  out  of  her  share,  and  paid  to  his  son. 
The  daughter  married  without  consent,  and  during  minority,  as  is 

(6)  3Atk..364.  (c)3Atk.  367.  .  (rf)  Ibid. 

(e).2  Vern.  357.  ed.  by  Raithby,  and  see  Barton  v.  Barton,  ibid.  308. 


556  Of  Legacies  [Cn.  XIII. 

presumed  ;  upon  which  a  question  arose  as  to  the  effect  of  the  con- 
dition ;  whether  it  was  in  terrorem.  And  the  Court  declared  it 
was  not  to  be  so  considered ;  for,  upon  the  -daughter's  marriage 
without  consent,  an  interest  vested  in  the  son,  who  was  to  be  looked 
upon  as  a  person  in  the  contemplation  of  the  testator,  as  well  as  his 
daughter. 

In  the  last  case,  and  in  that  proposed  by  Lord  Hardwicke  as 
above,  the  particular  legacies  were  limited  over.  But  whether  a 
mere  residuary  bequest  amounts-  to  a  disposition  of  the  legacy  within 
the  rule,  has  been  in  practice  the  subject  of  considerable  doubt. 
Perhaps  the  following  distinction  will  be  found  correct.  If  the  tes- 
tator give  no  direction  for  the  legacy  to  fall  into  the  residue,  a  dis- 
position of  that  fund  cannot  be  a  limitation  over  of  the  individual 
legacy,  because  it  is  not  permitted  to  form  a  part  of  the  residue.  On 
the  other  hand,  if  the  testator  direct  the  legacy  .to  fall  into  the  re- 
sidue, so  that  it  becomes  disposable  as  part  of  that  estate,  such  direc- 
tion will  be  virtually  a  limitation  over  of  the  particular  legacy. 
With  respect  to  the  authorities  ;  the  case  of  Jimos  v.  Horner(f )  is 
not  an  authority,  as  it  was  never  finally  determined. [g]  Paget  v. 
Hayivood,  referred  to  by  Willes,  C.  J,  in  Harvey  v.  Aston,(h]  is  too 
imperfectly  stated  to  have  much  importance  attached  to  it.  Semp- 
hill  v.  Bayly,(i)  decided  nothing  upon  this  subject,  for  the  1000Z. 
bequeathed  to  Elizabeth,  (the  question  in  the  cause,)  was  made  pay- 
able* to  her  at  twenty-one  or  marriage,  and  no  restraint  upon  her 
.marriage  was  imposed  by  the  testator  as  to  that  legacy.  In  Wheeler 
v.  Bingham  (before  stated,)  Lord  Hardwicke  expressly  markst  he 
distinction  above  mentioned.  There  was  no  direction,  in  that  case, 
that  the  grand-daughter's  legacy  should  fall  into  the  residue;  and 
although  that  estate  was  disposed  of,  his  Lordship  determined  that 
the  condition  annexed  to  the  legacy  was  merely  in  terrorem,  and, 
consequently,  that  it  did  not  fall  into  and  pass  with  the  residue  to 
the  residuary  legatee.'  But  he  'declared  an  opinion,  that,  if  there 
had  been  an  express  devise,  in  the  event  of  the  legatee  not  perform- 
ing the  condition,  that  the  money  should  sink  into  the  residue,  such 
direction  would  have  amounted  to  a  devise -over  of  the  particular 
legacy. (k)  Lord  Thurlow's  observation  in  Scott  v.  Tyler,  does  not 
contradict  Lord  Hardwicke' 's  opinion,  for  in  that  case  there  was  no 
direction  by  the  testator,  that  the  benefits  intended  for  Margaret 
should  fall  into  the  residue  upon  her  marriage  without  consent.  It 
is,  therefore,  dnly  sound  criticism  to  confine  Lord  Thurlow's  expres- 
sions to  the  facts  of  the  case  before  him ;  and  as  not  intended  to 
apply  to  instances,  where  there  are  express  directions  that  on  breach 
of  the  conditions,  the  legacies  shall  fall  into  the  residue.  His  Lord- 
ship's words  were  these,  "The  will  before  us  contains  a  residuary 
bequest.  But  that  has  been  repeatedly  and  well  enough  determined 
to  leave  the  legacy  in  statu  quo.  It  only  prevents  that,-  which  has 
not  been  disposed  of  already,  whatever  be  its  amount,  from  falling 
by  the  order  of  law,  to  the  executor  or  next  of  kin."(Z)  Whatever 
may  be  the  value  of  the  above  remarks,  in  order  to  prepare  the  reader 
for  the  decision  of  Sir  W.  Grant,  M.  R.  in  the  following  case ;  that 

(/)  1  Eq.  Ca.  Abr.  111.  pi.  9.  (g)  Forrest,  216.  (h}  1  Atk.  378. 

(0  Pre.  Ch.  562.  (*)  3  Atk.  368.  (/)  2  Dick.  723. 


SECT.  II.]  upon  Condition.  557 

determination  is  a  distinct  authority  for  the  proposition  j  that  wher- 
ever a  testator  directs  a  legacy,  determinable  upon  a  marriage  with- 
out consent,  to  fall  into  the  residue,  which  is  made  the  subject  of 
bequest,  that  is  such  a  specific  disposition  of  the  individual  legacy, 
as  to  pass  it  to  the  residuary  legatee,  upon  non-compliance  with  the 
condition  by  the  particular  legatee. 

In  Lloyd  v.  Branton,(m)  the  trusts  of  24;OOOZ.  were  declared  by 
the  will  oif  Mr.  Jllderson  in  favour  of  his. four  grand-nieces,  to  the 
following  effect :  The  above  sum  was  divided  into  four  shares  of 
6000Z.  each,,  the  dividends  of  one  of  which  his  trustees  were  directed 
to  pay  to  the  separate  use  of  his  grand-niece  Sarah  (then  of  age) 
for  life,  and  the  capital  among  her  children,  at  her  death.  Similar 
trusts  were  declared  of  the  remaining  shares  in  favour  of  his  other 
grand-nieces  (who  were  infants)  and  their  children.  But  if  any  of 
his  grand-nieces  married  without  the  ooqsent  of.  his  trustees,  the 
testator  declared  that  they  should  forfeit  the  dividends  bequeathed 
to  them  for  life,  and  that,  the  dividends  and  capital  ".should  there- 
upon sink  into  and  constitute  part  of  .the  residuary  of  his  estate, 
which -he  gave  to  his  grand-nephews."  .  The  amounts  of  the  shares 
were  varied  by  two  codicils,  neither  of  which  affected  the  question 
that  arose  upon  the  will,  Sarah  married  Mr.  Barnard  at  the  age 
of  twenty-six,  without  consent,  and  on  the  question,  whether  her 
legacy  was  forfeited *?  two  points  were  made  in  her  favour;  first, 
that  not  being  under  twenty-one  at  the  time  of  marriage,  she  was 
not  within  the  compass  o£  the  condition,  upon  the  principle  of  the 
authorities  mentioned  under  subdivision  (A.  5.);(n).or  secondly,  that 
the  eondition  was  merely  in  terrorem,  since  there  was  no  bequest 
over  of  the  legacy,  the  direction  for  its  falling  into  the  residue  and 
the  disposition,  of  such  residue  not  being  (as  it  was  argued)  a  suffi- 
.cient  limitation  over  of  the  -individual  legacy,  agreeably  with  pre- 
ceding adjudications.  To  the  first  point  'Sir  W.  Grant  answered, 
that  the  condition  could  not  be  confined  to  Sarah's  minority,  as-she 
was  twenty-one  when  the  will  was  made.  And  as  to  the  second, 
his  Honour  thus  expressed  himself:  "  In  the  present  case,  there  is  a 
direction  that  the  forfeited  bequests  shall  sink  into  and  constitute 
part  of  the  residue  thereinafterwards  bequeathed.  It  does  not  rest, 
therefore,  on  a  mere  declaration  of  forfeiture.  There  is  an  express 
disposition  made  of  what  is  to  be  forfeited.  It  was  said,  that  a  di- 
rection that  it  shall  fall  into  the  residue  is  no  more  than  the  law 
would  imply,  and  cannot  therefore  amount  to  a  bequest  over.  But 
when  it  was  decided  that  a  residuary  clause  did  not  carry  such  a 
legacy,  it  was  by  consequence  decided  that  it  did  not  fall  into  the 
residue,  for  if  it  did,  the  residuary  legatee  would  be  entitled  to  it. 
What  is  here  declared  is,  that  that  residue  •  shall  include  in  it  the 
legacies  declared  to  be  forfeited.  I  am  of  opinion  that  there  is  in 
this  case  a  valid  devise  over,  and  as  the-  marriage  appears  to  have  been 
had  without  consent,  it  follows  that  the  forfeiture  takes  place." 

Previously  to  quitting  the  present  subject,  it  is  proper  to  notice 
a  determination  of  Sir  Thomas  Plumer,  which  has  not  been  con- 
sidered as  free  from  doubt. 

The  case  alluded  to  is  Marples  v.  Bainbridge,(o)  where  Thomas 

(m)  SMeriv.  108.  118.  (n)  Ante,  p.  550.  .  (o)  iMad.  590. 

roL.  i*  4  B 


558  Of  Legacies  [Cri.  XIII. 

Marples  bequeathed  to  his  wife  "  should  she  survive  and  continue 
unmarried,"  all  his  personal  estate  for  life  ;  and  he  disposed  of  it 
after  her  decease.  The  widow  married  again,  and  the  property  for 
the  remainder  of  her  life  was  claimed  by  the  testator's  next  of  kin  ; 
but  his  Honour  decided  against  such  claim,  holding  that  the  be- 
quest was  a  condition.,  and  in  terrorem;  and  consequently  the  widow, 
notwithstanding  a  breach  of  it,  was  entitled  to  the  property  for  life. 

The  objection  to  this  decree  is,  that  it  is  founded  in  mistake  (as 
is  presumed)  from  not  distinguishing  between  a  limitation  and la 
condition. (p)  Whether  a  limitation  or  condition  is  intended  by  a 
testator,  is  to  be  ascertained  from  the  whole  of  his  will ;  technical 
words  to  constitute  either  of  them  not  being  required  in  testamenta- 
ry eases. (9)  That  a  limitation,  in  the  present  instance,  was  intend- 
ed, seems  apparent  from  the  terms  of  the  bequest.  The  gift  in 
substance  is  made  to  the  wife  for  life,  or  quousque  a  second  mar- 
riage. Upon  the  happening  of  either  event  her  interest  was  to  ex- 
pire. It  was  one  of.the  natural  periods  at  which  her  estate  was  to 
determine:  a  benefit  intended  durante  viduitate,  and  no  longer  ;  so 
that  upon  the  happening  of  either  contingency,  the  interest  which 
was  only  so  long  granted  must  cease.  In  such  a  case,  the  doctrine 
of  conditions  in  terrorem  is  wholly  inapplicable,  as  appears  from 
Lord  Hardwicke's  decree  in  t-he  following  case  : 

In  Richards  v.  Baker,(r)  Mr.  Richards  bequeathed  to  his  wife 
his  goods,  furniture,  &c.  in  or  belonging  to  his  house,  at  Edmonton, 
"so  long  as  she  continued  his  widow  and  no  longer  ;".  and  he  dis- 
posed of  his  residuary  personal  estate,  but  gave  no  direction  as  ta 
what  was  to  become  of  the  articles,  &c.  bequeathed  to  his  wife,  in 
the  event- of  her-second  marriage.  Lord  Hardwicke  declared,  that 
she  was  entitled  only  to  the  use  of  them  during  her  widowhood. 

The  difference  between  those  two  cases  is,  that  in  the  first  case, 
the  widow's  interest  rs  determinable  upon  her  death  or  marriage  ; 
and  by  the  second,  upon  her  marriage  only.  There  was  in  neither' 
a  limitation  over  of  the  legacy  upon  the  widow's  marriage.  The 
case  before  Lord  Hardtvickewas  not  cited  to  Sir  Thomas Plumer,  and 
it  is  presumed  that,  had  it  been  mentioned,  his  Honour  would  have  pro- 
nounced a  different  decree  than  was  made  in  Marples  v.  Bainbridge. 

B. — Conditions  requiring  marriages  with  persons  bearing  the  sur- 
names of  testators. 

Whether  the  mere  assumption  of  the  surname  of  a  testator  will  be 
a  performance  of  a  condition  'requiring  the  legatee  to  marry  a  per- 
son of  that  name,  previous  to  the  vesting  of  the  legacy,  does  not  ap- 
pear to  be  clearly  settled.  The  objection  to  such  a  mode,  viz.  the 
fraud  which  may  be  committed  upon  the  testator's  intention,  by  the 
adaption  of  the  name  before  the  marriage  with  a  view  to  the  legacy, 
and  then  abandoning  the  assumed  name  after  receipt  of  the  money, 
does  not  seem  to  be  obviated  by  the  obtaining  of  an  Act  of  Parlia- 
ment or  a  royal  license.  The  former,  in  giving  a  new  name,  does 
not  abolish  the  old.  So  that  the  party  may,  if  he  think  proper,  use 
his  old  name  upon  every  occasion,  and  accept  gifts  or  legacies  by  it 
alone. (s)  The  latter  is  a  mere  permission  to  take  the  new  name, 

(  fi)  See  several  cases  upon  this  distinction  collected  antf,  p.  526.  et  sea. 
(q)  Ante,  p.  502.  (r)  2  Atk.  321.  (*)  15  Ves.  100. 


SECT.  II, J  upon  Condition.  559 

does  not  give  it,  and  is  nothing  more  than  a  voluntary  assumption  of 
it.  If  then  neither  of  those  methods  in  taking  the  new  names  re- 
moves the  objection  to  its  voluntary  assumption,  it  seems  but  rea- 
sonable that  as  by  that  mode  the  condition  is  strictly  and  literally 
performed,  it  should  be  considered  sufficient  to  entitle  the  legatee 
to  the  legacy. 

Sir  Joseph  JeJtyll,  M.  R.  (a  Judge  of  no  little  authority)  declared 
such  to  be  his  opinion,  in  the  case  of  Barlow  v..  Bateman.  And 
although  his  decree  was  rerersed  in  the  House  of  Loi'ds,  the  ground 
of  the  reversal  may  possibly  have  been  different  from  what  is  usually 
inferred  from  the  argument  of  the  appellant's  counsel  appearing  in 
the  printed  report,  as  w«  shall  more  particularly  notice.  That 
was  a  case  of  mere  assumption  of  name,  upon  the  eve  and  on  ac- 
count of  the  marriage.  And  his  Honour  said,  "  I  am  of  opinion, 
that  the  condition  is  complied  with  by  the  defendant's  taking  the 
name  of  Barlow.  Surnames  are  not  of  very  great  antiquity,  for  in 
ancient  times  the  appellations  of  persons  were  by  their  Christian 
names,  and  the  places  of  their  habitations,  as  Thomas  of  Dale,  viz. 
the  place  where  he  lived. (/)  I  am  satisfied  the  usage  of  passing 
Acts  of  Parliament  for  the  taking  upon  one  a  surname  is  but 
modern,  and  that  any  person  may  take  upon  him  what  surname,  and 
as  many  surnames,  as  he  pleases,  without'.an  Act  of  Parliament. "(w) 
With  this  opinion  Abbot,  C.  J.  coincided,  in  the  recent  case  of  Doe 
v.  Yatcs,  in  which  he  expressed  himself  to  the  following  effect. 
"  A  name  assumed  by  the  voluntary  act  of  a  young  man,  at  his  out- 
set into  life,  adopted  by  all  who  know  him,  and  by  which  he  is 
constantly  called,  becomes,  for  all  purposes  that  occur  to  my  mind, 
as  much  and  effectually  his  name,  as  if  he  had  obtained  an  Act  of 
Parliament  to  confer  it  upon  him."  Upon  thewhole,  the  following  rule 
may  probably  be  laid  down  as  the  criterion  to  determine  those  cases  : 

Where  nothing  appears  upon  the  will  declaratory  of  the  testator's 
intention,  except  that  the  legatee  is  to  marry  a  person  bearing  his 
surname,  the  assumption  of  that  name  before  the  marriage  will  be 
sufficient.  But  where,  in  addition  to  this,  requisition,  the  context  of 
the  will  sufficiently  shows,  that  by  the  words  "name,"  or  "  sur- 
name," the  testator  meant  to  designate  a  person  inheriting  it  from 
his  father  .(as  in  the  instances  mentioned  in  the  second  chapter), (x) 
neither  the  assumption  of  the  name  or  surnane  with  or  without  an 
Act  of  Parliament,  nor  by  royal  license,  will  be  an  effectual  com- 
pliance with  the  Condition.  With  respect  to  the  authorities  appli- 
cable to  the  effect  of  a  voluntary  assumption  of  name — 

In  Barlow  v.  Bateman,(y)  Mr.  Barlow  bequeathed  to  his  kins- 
woman, Mary  Barlow,  lOOOj.  payable  at  twenty-one  or  marriage; 
but  if  she  died  under  that  age  or  unmarried,  he  gave  the  legacy  to 
his  kinsman,  Charles  Barlmo.  The  will  then  proceeded,  "  In  case 
the  said  Mary  Barlow  shall  marry  with  any  person  of  the  surname 
of  Barlow,  then  I  give  her  the  further  sum  of  1000J.  to  be  paid  on 
the  day  of  such  marriage  with  a.  Barlow  aforesaid.  But  if  the  said 
Mary  Barlow  shall  die  unmarried,  or  shall  marry  a  person  not  bear- 
ing the  surname  of  Barlow,  then  I  give  the  last-mentioned  1000Z. 

(0  See  Camden's  remains  concerning  Britam,  ed.  1637.  p.  141.  stated  5  Bam. 
&  Aid.  552.  in  a  note.  (it)  3  P..  Will.  66.  (x\  Ante,  p.  102,  &c. 

(t/)  2Bro.  Part.  Ca,  272.     8vo.  ed.     3  P.  Will.  65.  S.  C. 


560  Of  Legacies  [Cn.  Xllt 

to  the  said  Charles  Barlow."  Soon  after  the  testator's  death,  Mary 
married  the  respondent  Robert,  whose  father's  surname  was  Bate- 
man;  and  Robert  was  christened,  called,  and  known  by  the  name 
of  Robert  Bateman;  but  on  the  occasion  of  the  marriage,  and  not 
before,  he  assumed  the  surname  of  Barlow,  to  entitle  himself  to  the 
additional  legacy.  Charles,  the  appellant,  conceiving,  that  by  the 
above  marriage  he  became  entitled  to  the  conditional  legacy  of 
1000Z.  commenced  a  suit  to  procure  it,  but  his  bill  was  dismissed 
by  Sir  Joseph  Jekyll,  who  thought  that  as  Robert  bore  the  surname 
of  Barlow  at  the  time  of  the  marriage,  the  condition  was  well  per- 
formed; and,  upon  a  bill  "filed  by  Robert,  he  ordered  both  legacies 
to  be  paid.  Charles  appealed  from  both  decrees,  on  the  latter  of 
which  his  appeal  was  dismissed  for  irregularity,  the  decree  not 
having  been  signed  by  the  Chancellor;  but  the  first  decree  was  re- 
versed, and,  from  the  tenor  .of  the  argument  for  the  appellant,  it  might 
be  inferred,  that  the  reversal  was  founded  upon  the  principle,  that 
Robert  could  not,  without  legal  authority,  take  the  surname  of  Barlow. 

But  the  judgment  of  the  House  of  Lords  may  have  been  founded 
upon  a  different  reason;  the  particular  intention  of  the  testator  as 
collected  from  the  expressions  in  his  will.  It  might  have  struck 
their  Lordships,  from  the  language  of  the  bequests,  that  the  man 
pointed  out  for  Mary  to  marry  of  the  surname  of  Barlow,  was  not 
meant  to  be  a  person  taking  it  either  by  voluntary  assumption  or 
under  legal  authority,  but  an  individual  entitled  to  it  by  birth,  as  in 
the  instances  before  alluded  to.  It  is  observable,  that  the  only 
persons,  objects  of  his  provision,  were  two  distant  relations,  Charles 
and  Mary  Barlow,  whom  he  expressly  describes  as  his  kinsman  and 
kinswoman.  Relationship  was  the  cause  of  the  testator's  bounty, 
and  his  object  to  divide  his  property  among  such  of  his  relatives 
whom  he  knew  to  stand  in  that  character.  Both  the  legatees  bore 
his  surname  by  birth-right,  and  on  the  ground  of  being  of  his  stock 
or  family.  Under  such  circumstances,  it  is  not  unreasonable  to 
presume,  that  the  Lords  considered  the  condition  imposed  by  the 
testator  upon  his  kinswoman  Mary  to  marry  a  Barlow,  as  desig- 
nating a  Barlow  of  his  own  kin  or  family,  and  not  any  stranger  ca- 
priciously assuming  that  surname.  At  least,  if  this  be  a  possible 
supposition,  .which  might  have  had  influence  with  the  House  of 
Lords,  it  destroys  the  authority  of  the  case,  for  the  proposition  (as 
supposed  by  Baron  Thompson  in  Leigh  v.  Leigh,(z)  "  that  a  devise 
upon  condition  of  marrying  a  man  of  a  particular  name  is  not  satis- 
fied by  marrying  a  man  who  voluntarily  changes  his  name."  And  it 
leaves  the  judicious  remarks  of  Sir  Joseph  Jekyll  and  Chief  Justice 
Abbott  of  the  same  weight  and  importance  as  if  the .  decree  of  the 
former  had  not  been  reversed.  That  the  judgment  of  the  House  of 
Lords  was  founded  upon  the  special  circumstances  before  suggest- 
ed, was  so  considered  by  Lawrence,  J.  in  the  case  of  Leigh  v.  Leigh 
above  mentioned. (a)  And  it  is  conceived  that  it  may  be  correctly 
stated  as  a  general  proposition,  "  that  a  condition  to  marry  a  person 
of  a  particular  name  will  be  well  performed  by  a  voluntary  assump- 
tion of  it  previously  to  the  marriage." 

Indeed  the  case  of  Doe  v.  Yates,(b)  before  referred  to,  must  be 

(z)  15  Ves.  111.  (a)  Ibid.  107.  (d)  5  Barn.  &  Aid.  544. 


SECT.  II.}  upon  Condition.  561 

considered  an  express  decision  upon  the  subject ;  for,  although  the 
condition  was  subsequent,  and  for  that  reason  to  be  construed 
strictly,  yet  if  the  arbitrary  assumption  of  the  name  was  illegal  or 
ineffectual,  .it  must  have  been  considered  as  not  at  all  taken,-  and 
then  the  event  upon  which  the  limitation  over  was  to  take  place 
would  have  happened. 

In  that  case,  Mr.  Luscombe  devised  his  real  estate  for  the  benefit 
of  his  cousin,  John  Luscombe  Manning,  during  his  minority,  and 
when  he  attained  twenty-one,  to  the  use  of  him  for  life,  he  taking 
and  bearing  the  name  of  Luscombei  instead  of  his  own  surname; 
remainder  to  the  use  of  his  first  and  other  sons  in  succession,   and 
their  heirs  male,  they  taking  and  using  the  surname  of  Luscombe 
instead  of  their  own,  with  remainders,  over.     Then  followed  a  pro- 
viso and  direction  for  each  devisee  not  bearing  the  surname  of  Lus- 
combe, so  soon  as  they  respectively  should  be  in  possession  of  the 
estate,  to  take  the  surname  of  Luscombe,  and  use   it  instead  of  his 
own;  and  within  three  years  next  afterwards  to  procure  the  change 
of  surname  by  Act  of  Parliament  or  other  effectual  manner,  and  for 
ever  in  future  to  bear  and -use   the  surname  of  Luscombe.     But  if 
any  of  the  devisees,  who* should  be  in  possession  of  the   estate, 
should  not  take   and  use  that  surname,  and  should  neglect  to  get 
the  Act  of  Parliament,  or  other  sufficient  authority  for  the  above 
purpose,  within  three  years  next  after  being  in  possession  of  the 
property,  his  interest  should  cease  and  be  void,  and  the  estate  go 
over  to  the  person  next  in  remainder,  who  should  comply  with  the 
condition.    Manning,  the  devisee,  while  a  minor,  and  before  enter- 
ing into  possession  of  the  estate,  voluntarily  assumed  the  surname 
of  Luscombe,  and  ever  afterwards  used  and  bore  it;  but  he  did  not, 
after  entering  into  possession  of  the  property,  procure   an  Act  of 
Parliament  or  a  royal  license  to  take  that  surname.     The  question 
was,  whether  the  mere   assumption  of  the  surname  .was  a  compli- 
ance with  the  condition1?     And  the  Court  of  King's  Bench  was  of 
opinion  in  the  affirmative,  upon  the  principle,  that/as  the  devisee 
bore  the  name  of  Luscombe  at  the  time  he  entered  into  possession 
of  the  estate,  although  by  mere  arbitrary  assumption,  the  condition 
'was  fulfilled,  and  the  requisition  of  an  Act  of  Parliament  or  other 
legal  authority,  to  change  the  old  and  take  the  new  name,,  only 
applied  to  persons  who  did  not  bear  the  surname  of  Luscombe^t 
the  period  they  took  possession  of  the  property ;  so  that,  as  Mr. 
Manning  had  previously  assumed  that  surname  (a  voluntary  as- 
sumption being  sufficient,)  he  was  not  an  object  within  the  meaning 
of  the  proviso,  and  consequently,  not  bound  by  it. 

From  the  preceding  contents  of  this  chapter,  it  appears  that  the 
principle  upon  which  the  literal  performance  of  conditions  was  dis- 
pensed with,  was  the  presumed  intention  of  testators  imposing  them, 
and  not  compensation  as  upon  a  forfeiture.  Indeed,  the  doctrine  of 
equitable  relief  upon  compensation  is  quite  inapplicable  to  breaches 
of  conditions  requiring  marriages  with  consent,  and  a  court  of  equity 
has  never  proceeded  upon  such  a  ground. (c)  It  has  been  said,  that 
where  time  or  place  is  a  secondary  consideration,  if  the  thing  requi- 
red to  be  done  is  performed,  though  at  another  time  or  place,  so  as 

{c}  See  ante,  p.  515. 


562  Of  Legacies  [Cn.  XIII. 

that  the  testator's  intention  is  fulfilled,  the  performance  shall  be  deem- 
ed a  sufficient  execution  of  the  condition.(d)  In  order  more  parti- 
cularly to  illustrate  these  remarks,  it  is  proposed  to  offer  a  few  ex- 
amples under  the  title — 

SECT.  III.  Respecting  Forfeiture  generally,  in  consequence  of 
the  non-compliance  with  conditions. 

FIRST,  where  a  bequest  is  made  to  «#.  upon  a  precedent  condition, 
viz.  if  he  pay  to  B.  lOOOZ.or  execute  a  release  of  all  demands,  with- 
in twelve  months  after  the  testator's  death  ;  and  there  is  no  limitation 
over  upon  non-compliance,  if  A.  pay  the  money  or  execute  the  re- 
lease, although  not  within  the  twelve  months,  he  will  be  entitled  to 
the  legacy  ;  because  it  is  considered,  that  payment  of  the  money  and 
the  execution  of  the  release  are  the  sole  motives  of  .the  testator  in 
imposing  the  condition, (e)  and  that  his  intention  is  fulfilled  when 
those  acts  are  executed.  But — 

SECOND.- — If  the  Legacy  had  been  limited  over  to  C.  in  the  event 
of  the  lOOOZ.  not  being  paid,  or  the  release  given  within  the  twelve 
months,  the  bequest  over  to  G.  would  take  place  ;  because  the  time 
of  performance  was  made  an  essential  by  the  testator,  in  expressly 
limiting  over  the  legacy  to  C.rif  neither  of  those  acts  were  done 
within  the  specific  period^/)  ; 

THIRD.— When  the  performance  does»not  solely  depend  upon  the 
legatee,  the  Civil  law  does  not  seem  consistent,  in  deciding  when  a 
non-compliance  shall  and  shall  not  be  a  forfeiture. (g)  Possibly  the 
determination  in  the  tribunals  of  this  country  may  be  as  follows  :  If 
a  legacy  be  given  to  B.  in  case  he  marry  I),  the  testator's  daughter  : 
here  the  performance  of  the  condition  depends  upon  the  proposal  of 
B.  and  the  acceptance  of  D.  If  D.  refuse  B.,  it  is  apprehended,  that 
the  offer  and  readiness  of  B.  to  marry  her,  will  not  be  considered  a 
performance  of  the  condition,  because  the  condition  being  precedent, 
B.  cannot  answer  the  description  in  the  bequest  as  the  person  to 
whom  the  gift  applies.(A)  Besides,  the  procuring  of  D.'s  consent  is 
a  contingency,  which  must  have,  been  in  contemplation  of  the  tes- 
tator; and  an  obligation  meant  to  be  imposed  upon  B.,  the  result 
of  which  was  to  decide  whether  he  was  to  receive  the  legacy,  or 
not.(i)  But— 

FOURTH. — Had  the  condition  been  subsequent,  as  if  the  gift  were 
made  to  B.  payable  at  twenty-five,  with  a  proviso,  incase  he  did  not 
marry  D.  before  that  age,  the  bequest  should  cease  and  be  void ; 
here  the  refusal  of  D.  to  marry  B.  is  of  no  consequence ;  for,  the 
condition  being  merely  in  terrorem,  the  non-compliance  with  it  does 
not  create  a  forfeiture. ( k)  But  if  the  will  contain  a  limitation  over 
of  the  legacy,  in  case  he  did  not  marry  D.  within  the  above  period, 
then  it  is  presumed,  that  if  the  marriage  do  not  take  place,  whether 
from  the  neglect  or  the  refusal  of  D.,  the  limitation  over  will  be  ef- 
fectual, for  the  reason  before  mentioned. 

(rf)  Et  vide  Swinb.  pt.  4.  sect.  6.  art.  2.  aWd  ante,  p.  505-6. 

(e)  Ante,  p.  514.  (/)   Vide  ante,  p.  515.  et  seq. 
(e-)  Swinb.  pt.  4.  sect.  6.  art.  2.  and  sect.  8.  art.  16.  and  17. 

Hi)  Ante,r>.  508.  et  seq, 

(f)  As  to  the  effect  of  endeavours  to  perform  conditions,  see  Smith  v.  Wilson,  8 
East,  443.  and  the  authorities  referred  to  in  that  case.  (k)  See  ante,  p.  554. 


SECT.  IV.]  upon  Condition.  563 

But  possibly  a  legatee  may  be  ignorant  of  the  testamentary  benefit 
bequeathed  to  him  ;  to  which  cause  the  non-performance  of  a  con- 
dition annexed  to  the  legacy  may  be  imputed.  It  may,  therefore, 
be  necessary  to  consider, — 

SECT.  IV.  The  duty  of  executors  to  give  notice  to  legatees  of 
conditions  upon  which  the  legacies  are  to  take  effect  or  be 
devested. 

1.  When  the  subject  is  personal  estate. 

It  seems  that  legatees  must  obtain  information  of  conditions  an- 
nexed to  their  legacies,  as  executors  are  under.no  obligation  to  give 
notice  of  them,  unless  by  particular  direction.  Hence  it  follows, 
that  it  will  not  be  a  sufficient  excuse  for  a  breach  of  the  conditions, 
for  the  legatees  to  allege  and  prove  they  had- no  knowledge  of  the 
terms  upon  which  their  legacies  were  given. 

In  Chauncy  v.  Graydon,(l)  legacies  of  1000Z.  South  Sea  stock  were 
bequeathed  to  Peter  and  Cassandra  Tahourdin  at  twenty-one,  or  on 
marriage  with  the  consent  of  their  father,  &c.  with  a  limitation  over, 
upon  their  death  before  that  age,  or  marriage  without  consent.  Thev 
broke  the  condition,  and  alleged  in  excuse  their  ignorance  of  it. 
But  Lord  Hardwicke  determined  that  circumstance  to  be  insufficient 
to  prevent  a  forfeiture  ;  upon  the  principle,  that  "where  a  condition 
is  annexed  to  a  devise  of  real  or  personal  estate,  and  no  notice  re- 
quired by  the  will  to  be  given,  nor  any  person  obliged  to  give  it,  the 
legatees  must  perform  the  condition,  or  cannot  be  entitled  ;  and  if 
they  omit  to  do  so,  a  forfeiture  incurs  when  there  is  a  limitation 
over."(ra)  Consequently,  where  no  person  is  bound  to  give,  the 
parties  themselves,  must  take  notice,  as  in  that  case;  the  testator 
not  having  imposed  any  obligation  upon  his  executors  to  give  it. 
This  doctrine  was  assented  to  by  Sir  W.  Grant  in  the  case  of  Bur- 
gess \.  Robinson  before  stated. (w)  And  the  law  is  the  same  in  dis- 
positions of  real  estates  ;  which  leads  us  to  the  consideration 

2.  Of  the  necessity  forgiving  notice  of  conditions  annexed  to  de- 
vises of  real  property. 

The  following  distinction  prevails  upon  this  subject,  when  the 
devisee  is  heir  at  law,  and  when*  be  is  a  stranger,  viz.  that  notice  is 
necessary  to  be  given  to  the  heir,  before  a  forfeiture. can  attach  for 
a  breach  of  the  testamentary  condition ;  'but  that  no  such  notice  is 
required  to  be  given  to  the  stranger;  and  upon  this  reasoning: 
The  heir  has  a  title  paramount  the  will,  i.  e.  by  descent,  and  he  is 
presumed  to  enter  and  claim  in  that  right.  As,  therefore,  the  devise 
is  not  necessary  to  his  title,  he  will  be  considered  to  know  nothing 
of  it,  nor  of  the  condition,  until  he  receive  notice.  But  the  stranger 
has  no  title,  except  under  the  will  imposing  the  condition.  Hence 
he  is  presumed  to  have  knowledge  as  well  of  the  condition  as  of 
the  devise. (o) 

(/)  2  Atk   616  (m)  2  Atk.  619.  („)  Ante,  p.  516. 

(o)  bee  the  following  cases:  Frances'  case,  8  Rep.  89.  b.  Porter  v  Fry,  1 
Ventr.  199,  1  Mod.  300.  314.  Sir  T.  Rayam.  236.  Malloon  v.  Fitzgerald,  3  Mod. 
28.  Skin.  125.  Whaley  v.  Read,  Lutw.  804.  809.  Burleton  v.  Humfrey,  Ambl. 
259.  and  Doev.  Beauderk,  11  East,  657.  Randall  v.  Eeley,  Cart.  92.  170.  is  not 
law,  and  see  Lord  Ellenborough's  comments  upon  it  in  the  last  case. 


564  Of  the  Executor's  Assent.  [Cn.  XIV. 

In  Doe  v.  Beauclerk,  referred  to  in  the  last  note,  Lord  Elleribo- 
rough  expressed  his  sentiments  upon  the  propriety  of  the  following 
distinction,  "  where  a  party  is  really  ignorant  of  the  existence  of  the 
instrument,  in  which  the  condition  is -contained,  and  where  he  would 
have  good  title  if  there  were  no  such  instrument,  it  seems  unrea- 
sonable to.  hold  that  a  neglect  of  the  terms  of  that  condition  should 
subject  him  to  a  loss  of  the  estate.  It  would  encourage  the  con- 
cealing of  the  instrument,  until  a  breach  were  incurred,  so  to  decide. 
And  no  substantial  inconvenience,  can  result  from  holding  that  the 
person  entitled  to  avail  himself  of  a  breach,  should  take  care  that 
the  condition  was  known  to.  the  person  who  was  to  comply  with  it." 
And  in  that  case,  the  Court  founded  its  opinion  upon  the  broad 
ground  that  neither  neglect  nor  refusal  will  subject  the  devisee,  who 
is  heir,  to  lose  the  estate,  unless  he  has  notice  of  the  condition. 


CHAPTER  XIV. 

Of  the  assent  of  Executors  to,  and  the  payment  and  appro- 
priation of  Legacies. 

SECT.  I.  Of  the  Executor's  assent. 

.  '  i. — The  necessity  and  effect  of  it. 

2. — Nature  of  legatee's  interest  prior  to  assent. 
•3. — Consequences  of  legatee's  taking  his  legacy  with- 
out assent. 

4.— When  and  by  whom  assent  may  be  given. 
5;- — What  will  be  a  good  assent. 

A.^-Where  the  absolute  interest  is  given  to  the 
legatee.  .  . 

B. —  Where  the  fund  is  gwen  in  succession. 

C. —  Where  a  partial  interest  is  given  to  an  ex- 
ecutor. 

6. — Presumptive  assent. 
7. — Conditional  assent. 
8. — The  retracting  of  assent. 

SECT.  II.  Of  the  payment  of  Legacies  . 

I.— Out  of  what  fund. 

2. —  Whether  in  sterling  money  or  in  currency. 
3. — By  whom  the  exchange  is  to  be  paid. 
4. — Jit  what  time  legacies  to  be  paid. 

A. — When  the  bequest  is  of  a  gross  sum  of 

money. 

B. —  When  of  an  annuity. 
C. — Of  apportionment  of  annuities  and  divi- 
dends in  the  nature  thereof. 

5. — To  whom  to  be  paid. 

'A. —  When  legatee  is  an  infant. 
B. — When  a  married  woman. 
C. — When  a  lunatic. 


SECT.  I.]  Of  the  Executor's  Assent.  565 

D. — When  a  bankrupt. 

E. — When  to  a  legatee  abroad,  and  not  heard 

of- 

6.— Jls  to  deductions  and  retainer  under  the  stamp 
acts. 

A. — In  respect  of  what  legacies  liable,  and  the 

quantum. 

B. — By  whom  to  be  paid  or  retained. 
C. — At  what  time  payable,  &c. 
D. — Retainer  by  executor : 

1.  for  his  own  benefit. 

2.  for  the  benefit  of  another. 

7. — Retainer  by  executors  generally  by  way  of  sett  off 

against  legatee's  debt. 
8. — Presumptive  payment  of  legacies. 

SECT.  III.  Of  the  appropriation  of  Legacies  of  Money  or 
Stock. 

1 . — Legatee's  right  to  appropriation. 

2. — Of  appropriation  in  pais. 

S.-r~Ofthe  effects  of  appropriation  on  the  fund  itself. 


SECT.  I.  Of  the  Executor's  assent  to  Legacies. 

1.  ITS  necessity  and  effect. 

The  law  makes  an  executor,  to  the  amount  of  the  assets,  responsi- 
ble to  every  person  having  demands  upon  his  testator.  In  order  to 
enable  the  executor  to  administer  the  estate  properly,  it  vests  it 
absolutely  in  him ;  and  as  it  trusts  to  him  the  due  administration 
of  the  fund,  according  to  the  different  natures  of  the  claims  thereon, 
it  also  prohibits  persons  having  demands  upon  the  estate  from  ap- 
propriating any  parts  of  it,  in  satisfaction  of  their  claims,  without  the 
previous  consent  of  the  executor.(a)  Hence  follows  the  necessity 
for  a  legatee  to  procure  the  executor's  assent  to  the  property  be- 
queathed to  him ;  for  until  that  consent  be  obtained,  his  title  is  in- 
complete. As  this  requisite  of  consent  is  founded  upon  the  duty  of 
the  executor  duly  to  administer  the  assets,  and  the  personal  respon- 
sibility which  he  incurs  upon  a  breach  of  it,  it  is  a  consequence, 
that  his  assent  is  only  necessary  in  instances  falling  within  the  range 
of  his  office  as  executor,  and  not  to  devises  of  freehold  estates  in  fee, 
for  life,  or  for  terms  of  years  ;(&)  but  whatever  are  personal  assets  to 
be  administered,  whether  chattels  personal  or  real,  and  whether 
specifically  or  generally  bequeathed,  they  cannot  be  taken  posses- 
sion of  without  <te  concurrence  of  the  executor. 

It  may  however  be  a  question,  whether,  if  a  person  by  his  will 
forgive  or  release  his  debtor  the  money  owing  to  his  estate,  such  re- 
lease or  forgiveness  will  require  the  assent  of  the  executor  before  it 
can  take  effect ;  but  it  seems  that  the  executor's  assent  is  necessary, 
for  the  debt  may  be  wanted  to  pay  creditors,  and"  against  them  it 

(a)  Swinb.  pt  1.  sect  6.  art.  5.     Co.  Litt  111.     Perk,  sect,  488.  570.  572. 
JBolles  v.  JVyse/iam,  Dy.  254.  b.     2  Atk.  77.         (b)  15  Ves.  579.    Touchst.  455. 
VOL.  i.  4  C 


56f>  Of  the  Executor's  Assent.  [Cn.  XIV. 

must  be  considered  as  a  legacy ;  so  that  the  case  falls  within  the 
general  rule,  which  requires  the  executor's  assent  previous  to  the 
vesting  of  legacies. (c) 

With  respect  to  government  stock  or  annuities,  it  appears  to  have 
been  the  practice  of  the  Bank  of  England,  grounded  upon  the  sta- 
tute 5th  William  and  Mary,  cap.  20,  by  which  the  Bank  was  insti- 
tuted, and  upon  the  other  Acts  of  Parliament  which  regulate  the 
devise  of  property  transferrable  at  the  Bank,  (by  which  the  probates 
of  wills  are  directed  to  be  there  deposited,  for  the  purpose  of  having 
the  trusts  extracted,)  that  where  stock,  &c.  has  been  specifically 
bequeathed,  without  the  intervention  of  trustees,  to  permit  the  trans- 
fer to  be  made  to  the  legatees,  and  not  to  the  executor  ;  and  when 
trustees  have  been  appointed,  then  to  the  trustees,  with  a  restriction 
not  to  allow  of  a  transfer  to  any  other  persons,  except  those  named 
in  the  will.  It  seems,  however,  that  this  practice  is  erroneous,  and 
that  the  executor  having  the  legal  right  to  the  specific  as  well  as  to 
the  general  assets,  to  pay  debts,  &c.  has  the  sole  right  to  call  upon 
the  Bank  to  transfer  the  stock  into  his  name ;  as  no  interest  in  it 
vests  in  the  legatees  prior  to  his  assent.  It  also  appears  to  be  im- 
material whether  such  property  be  given  specifically  in  the  strict 
sense  of  the  word,  or  as  a  residue ;  such  property  being  to  be  con- 
sidered in  no  other  view  than  the  other  general  assets  as  to  this  pur- 
pose, and  therefore  subject  to  all  the  incidents  of  a  testamentary 
disposition  of  personal  estate. (d) 

With  respect  to  the  effect  of  the  executor's  assent — 

The  consent  creates  no  new  title,  but  merely  perfects  that  which 
is  derived  under  the  will;  consequently,  if  the  bequest  be  void, 
the  assent  of  the  executor  is  nugatory. (e)  But  when  the  devise  is 
good,  and  consent  is  given,  the  title  of  the  legatee  from  the  testa- 
tor will  be  complete  ;  and  although  the  executor  may  have  wasted 
the  assets,  the  persons  affected  by  it  can  only  have  redress,  against 
the  executor  personally. 

Accordingly,  in  Foster  v.  Spencer,(f)  it  was  said,  if  lessee  for 
years  devise  his  term  to  another,  appoint  executors,  and  die  ;  and 
the  executors  commit  waste,  and  afterwards  assent  to  the  bequest, 
although  between  the  executors  and  the  devisee  it  has  relation,  and 
the  latter  is  in  by  the  devisor,  yet  an  action  of  waste  shall  be  main- 
tained against  the  executors  in  the  tenuit. 

By  assent  the  legal  interest,  which  the  executor  had  in  the  fund, 
ceases, (g)  and  the  entire  property,  legal  and  equitabk,  becomes 
vested  in  the  legatee. 

2.  In  regard  to  the  nature  of  the  interest  of  a  legatee,  previously 
to  the  executor's  assent. 

Although,  as  we  have  seen,  the  assent  of  the  exeoutor.be  neces- 
sary to  complete  the  title  of  the  legatee ;  yet,  before  such  assent, 
the  legatee  takes  an  inchoate  right  in  the  subject,  which  may  be 
forfeited  ;  and  it  is  transmissible  to  his  personal  representatives,  in 
the  event  of  no  disposition  .by  will.(^)  But — 

(c)  Ves.  sen.  1.  50.  and  see  ante,  p.  325.  etseg. 

(d)  Bank  of  England  v.  Moffat,  3  Bro.  C.  C.  262.     Bank  of  England  v.  Par- 
sons, 5  Ves.  665.     Bank  of  England  v.  Lunn,  15  Ves.  569. 

(e)  Bransby  v.  Grantham,  Plowd.  525. 

/)  Cited  in  Saunder's  case,  5  Rep.  12.  b.  and  see  ante,  p.  314.  ft  stg. 
Bridg.  55.  (A)  Off  Ex.  236. 


SECT.  I.]  Of  the  Executor's  Assent.  567 

3.  Suppose  the  legatee  to  take  his  legacy  without  the  consent  of 
the  executor,  what  will  be  the  consequences'? 

He  will  be  liable  to  an  action  of  trespass  or  trover  by  the  execu- 
tor.^) And  it  has  been  alleged  and  admitted,  that  if  the  devisee 
of  a  term  for  years  enter  upon  the  lands  without  the  executor's  per- 
mission, he  will  be  considered  a  disseisor.(&) 

Besides,  if,  before  the  executor  have  proved  the  will,  or  under- 
taken the  trusts  of  it,(7)  a  legatee  intermeddle  with  the  estate,  by 
taking  possession  of  the  property  bequeathed  to  him,  without  the 
executor's  leave,  he  will  not  only  be  liable  to  the  action  of  the  ex- 
ecutor after  probate,  but  also  in  the  mean  time  to  the  suits  of  the 
testator's  creditors,  as  an  executor  de  son  tort.  But  if,  before  any 
action  be  commenced,  he  pay  over  to  the  lawful  executor  the  whole 
of  the  assets  he  received,  that  act  will  purge  the  original  fort,  and 
entitle  him  to  the  plea  of  plene  administravit.  This  doctrine  seems 
to  have  been  settled  by  the  cases  referred  to  in  note.(w) 

We  shall  now  consider — 

4.  By  whom  assent  may  be  given. 

Where  an  executor  is  appointed,  he  may  assent  to  a  legacy  be- 
fore he  proves  the  will.(n)  And  in  instances  where  there  are  two 
or  more  executors,  the  assent  of  any  one  of  them  is  sufficient.(o) 
So  also,  if  one  of  the  executors  be  a  legatee,  his  single  assent  to 
his  own  legacy  will  vest  the  complete  title  in  himself;(/j)  and,  ac- 
cording to  Perkins,  even  before  probate  or  administration.^) 
Again,  if  the  subject  be  entire,  and  be  given  to  all  the  executors, 
the  assent  of  one  of  them  to  his  own  proportion  will  be  sufficient.(r) 
But  if  an  executor-legatee  renounce  probate,  by  which  act  he  places 
himself  in  the  same  situation  as  if  he  had  never  been  appointed  to 
that  office,  his  assent  to  his  own  legacy  will  be  ineffectual,(s)  and 
if  he  take  it  without  the  permission  of  the  lawful  administrator,  he 
will  incur  the  same  liabilities  as  any  other  legatee  so  acting,  and 
which  we  have  before  mentioned. 

When  the  executor  is  an  infant,  the  Ecclesiastical  Courts  grant 
administration  to  a  person  durante  minore  atate  of  the  infant ;  but 
the  law  in  such  case  is  now  very  different  from  what  it  formerly 
was.  By  the  Civil  law  followed  by  those  courts  and  adopted  by 
our  own,(£)  infancy  determined  at  the  age  of  seventeen ;  at  which 
time  probate  of  the  will  was  granted  to  the  executor,  who,  from 
that  period,  was  competent  to  discharge  the  duties  of  the  office. 
The  powers  of  the  administrator  during  infancy  were  confined  to 
the  performance  of  mere  acts  of  necessity.  None  were  permitted 
which  might  be  in  the  least  degree  prejudicial  to  the  infant, 
might  assent  to  a  legacy ;  but  if  there  was  a  deficiency  of  assets, 
such  assent  would  have  been  void.(w)  In  like  manner,  after  the 
executor  attained  his  age  of  seventeen,  he  was  at  liberty  to  assent 
to  a  legacy  j  but  as  he  still  continued  by  the  law  of  this  country 

(i)  Off  Ex  27.  (£)  Owen,  76.  (0  Read's  case.  5  Rep.  34. 

(m)  Padget  v.  Prie&t,  2  Term.  Rep.  97.   Curtis  v.  Vernon,  3  T.  R.  587.  Mount- 
ford  v.  Gibson,  4  East,  441. 452. 
J   (n)Off.  Ex.  49.  Godolp.  Orph.  Leg.  144.     Dyer,  372.     2Freem   23 

0)  Off.  Ex.  S23.     3  Atk.  510.  ( ft)  1  Roll.  Abr  618.  (eLSe£  572' 

(r)  1  Ro".  Abr.  618.  «  Broker  y   Charter,  Cro .  Eliz.  92. 

(0  Piggot's  case,  5  Rep.  29.  a.  Cro.  Eliz.  602.  S.  C.  («)  1  Vern.  328, 


568  Of  the  Executor's  Assent.  [Cn.  XIV. 

under  the  disability  of  infancy,  and,  therefore,  under  its  special 
protection,  it  would  not  give  validity  to  any  acts  which  affected 
him  personally,  or  his  estate  ;(#)  so  that,  if  he  assented  to  a  legacy, 
when  there  was  a  defect  of  assets,  the  assent  was  void.  This  state 
of  things,  attended  as  it  was  with  great  practical  inconvenience, 
induced  the  legislature  to  interpose,  and  by  a  statute  passed  in  the 
reign  of  the  late  king,(i/)  it  was  enacted,  that  where  an  infant  is 
sole  executor,  administration  with  the  will  annexed  shall  be  granted 
to  the  guardian  of  the  infant,  or  to  such  other  person  as  the  spiri- 
tual court  shall  think  fit,  until  the  infant  shall  have  attained  the 
full  age  of  twenty-one ;  at  which  period,  and  not  before,  probate 
of  the  will  shall  be  granted  to  him.  And  that  the  person,  to  whom 
such  administration  shall  be  granted,  shall  have  the  same  powers 
vested  in  him,  as  an  administrator  by  virtue  of  an  administration 
granted  to  him  durante  minore  eetate  of  the  next  of  kin:  that  is,  he 
shall  be  complete  and  absolute  administrator  for  every  purpose 
during  the  continuance  of  his  office,  and  may,  upon  his  own  responsi- 
bility, perform  the  same  acts  as  the  next  of  kin,  in  the  one  case,  and 
the  infant  executor,  in  the  other,  might  have  done,  if  they  had  been 
of  age,  and  administration  had  been  granted  to  them  personally. (z) 
This  statute,  therefore,  has  altered  the  preceding  established  law 
upon  this  subject ;  consequently,  an  administrator  durante  minore 
estate  of  an  infant  executor  may,  under  any  circumstances,  give  a 
valid  and  irrevocable  assent  to  a  legacy. 

If  an  executrix  be  a  married  woman,  the  assent  of  her  husband  to 
a  legacy  will  be  sufficient,  for  as  the  law  authorizes  him  to  adminis- 
ter in  right  of  his  wife,  the  power  of  assenting  or  dissenting  to  a 
bequest  is  incident  to  that  general  authority. (a)  But  it  seems  to 
have  been  formerly  matter  of  doubt,  whether  a  married  woman  ap- 
pointed executrix  was  competent  to  assent  to  a  legacy,  without  the 
privity  and  concurrence  of  her  husband.  The  doubt,  however,  ap- 
pears to  have  been  removed  by  the  decision  in  RusseVs  case,(&) 
according  to  which,  as  she  is  adjudged  incapable  of  releasing  a 
legacy,  without  her  husband,  by  reason  of  the  injury  he  might  sus- 
tain ;(c)  so  her  assent  to  a  legacy  without  his  permission  must  be  nu- 
gatory and  ineffectual ;  and  of  this  opinion  was  the  Court  in  the 
case  of  Cookes  v.  Bellamy.(d) 

The  next  subject  is — 

5.  What  what  will  be  a  good  assent.     And  first, 

A. — Where  the  absolute  interest  is  given  to  the  legatee. 

Assent  may  be  either  express,  or  implied :  but,  since  the  assent 
to  a  legacy  by  an  executor  is  in  its  consequences  of  great  importance 
to  him,  it  is  but  reasonable  that  the  act  or  expressions  deemed  suf- 
ficient to  impart  that  assent,  should  be  unambiguous.  They  ought  to 
be  such  as  to  leave  no  doubt  in  the  mind  of  a  Judge,  that  the  ex- 
ecutor meant  to  confer  his  assent  to  the  vesting  of  the  bequest. 

It  is  stated  in  a  book  of  great  authority,  that  if  the  executor  say 
to  a  legatee,  "  God  send  you  joy  of  your  legacy,"  those  expressions 
will  amount  to  an  assent  ;(e)  a  proposition,  which  it  is  presumed, 

(x)  Prince's  case,  5  Rep.  29.  b.  (y)  38  Geo.  3.  c.  89. 

(z)  1  Com.  Dig.  tit.  Administration  (F.) 

(a)  See  "  Law  of  Husband  and  Wife,"  1  vol.  p.  184.  1  Leon.  216.  Off.  Ex.  321. 
(A)  5  Rep.  27.  b.        (c)  Cro.  Car.  519.         (rf)  Sid.  188.        (e)  Touchst  456. 


SECT.  I.]  Of  the  Executor's  Assent.  569 

ought  to  be  received  with  qualification.  For  suppose  an  executor, 
before  he  has  ever  had  the  opportunity  of  examining  the  testator's 
affairs,  and  at  the  time  when  the  will  is  opened  and  read,  perceive 
that  a  friend,  one  of  the  executors,  is  numbered  in  it,  upon  which 
he  expresses  himself  to  the  above  effect,  it  would  be  very  unreason- 
able to  construe  words  of  congratulation  into  terms  of  assent  to  the 
legacy,  so  as  to  involve  the  unsuspecting  executor  in  the  conse- 
quences of  a  devastavit.  On  the  other  hand,  if  those  expressions  be 
uttered,  after  the  executor  has  had  sufficient  time  to  acquaint  him- 
self with  the  state  of  the  assets,  there  seems  to  be  fair  ground  for 
applying  them  to  an  intention  of  assenting  to  the  bequest. 

When  the  executor  informs  a  legatee,  that  he  intends  him  to  have 
the  legacy  according  to  the  devise,  there  can  be  no  doubt  of  his 
meaning  to  impart  his  assent  by  those  terms. (/)  But  when  the 
expressions  are  more  equivocal,  as  suppose  the  executor  to  say  upon 
application  for  the  legacy,  "  that  the  testator  has  left  all  to  him," 
such  or  the  like  phrases  will  not  be  converted  into  assent.(g)  If, 
however,  he  had  declared,  that  "  the  money  lay  ready  for  the  legatee 
whenever  he  would  call  for  it,"  such  a  declaration  would  have  been 
a  good  assent  to  the  bequest. (h] 

In  agreement  with  the  distinction  before  noticed,  if  an  executor 
request  the  legatee  to  dispose  of  his  legacy,  his  assent  is  necessarily 
implied,  (i) 

Or  if  the  rents  or  interest  of  a  bequest  be  directed  for  the  main- 
tenance of  the  legatee  during  minority,  and  the  executor  commence 
so  to  apply  them,  his  consent  to  the  principal  will  be  presumed. (Ac) 

Upon  the  same  reasoning,  it  will  be  a  good  assent  to  the  bequest, 
if  the  legacy  be  subject  to  a  charge,  which  is  paid  by  the  executor; 
for  assent  to  the  charge  is  assent  to  the  disposition  of  the  fund,  out 
of  which  it  is  to  be  satisfied. (1} 

When  a  legacy  is  absolutely  given  to  an  executor,  his  assent  to 
take  as  legatee  must  be  governed  by  the  distinctions  before  noticed. 
If  he  expressly  declare  that  he  assents  to  his  legacy,  there  can  be  no 
question  ;  but  if  he  merely  possess  and  use  the  property,  consistently 
with  his  office  of  executor,  such  a  possession  of  it  can  never  be  con- 
sidered as  a  constructive  assent  to  the  bequest. (m) 

Suppose  then  the  executor  to  say  "  he  will  take  his  legacy  accord- 
ing to  the  will;"  that  is  an  election  to  take  it  as  legatee. (w) 

Or,  suppose  the  subject  bequeathed  to  an  executor  be  a  term  for 
years,  and  he  apply  the  rents  to  his  own  use  ;(o)  or  if,  in  disposing 
of  the  term  he  recites  in  the  instrument  that  he  has  it  by  devise  ;(jp) 
or,  if  there  be  other  executors,  and  he  enter  into  possession  of  the 
term  in  exclusion  of  his  co-executors. (g)  In  these,  and  similar 
cases,  he  will  be  considered  as  having  assented  to  the  devise,  be- 
cause such  acts  manifest  that  he  dealt  with  the  term  not  as  executor 
but  in  the  character  of  specific  devisee  of  it ;  and  indeed,  if  the  con- 
structive assents  last  mentioned,  were  in  their  consequences  to  make 
the  executor  guilty  of  a  devastavit,  still  he  will  have  the  value  of  the 

)  Touchst  456.  ($•)  1  Roll.  Abr.  620.  (A)  Cowp,  293. 

0  Lam/iel's  case,  10  Rep.  47.  a.  52.  b.     Off.  Ex.  322. 
(/t)  Leon.  Rep.  129.     Paramour  v.  Yardley,  Plowd.  539. 
"  1  Stra.  70.     (w)  10  Rep.  52.  b.  Baker  v.  Hall,  12  Ves.  501.     (n)  1  Lev.  25. 
Roll.  Abr.  619.  (ft  Ibid.  620.  (q}  Dyer,  277.  b. 


I 


570  Of  the  Executor's  Assent.  [Cn.  XIV, 

whole  term  as  an  equivalent  to  indemnify  himself  against  those  con- 
sequences. This  would  not  be  the  case,  however,  if  the  devise  had 
been  to  him  for  life  only;  and  this  consideration  has  induced  the  law 
to  require  stronger  evidence  of  assent  in  the  latter  than  in  the  former 
case,(r)  as  will  be  shown  in  considering — 

B. — What  will  be  a  good  assent,  when  a  legacy  is  given  to  per- 
sons in  succession. 

Where  a  legacy  is  limited  to  several  persons  in  the  nature  of  re- 
mainders by  executory  devise,  the  executor's  assent  to  the  first  taker 
will  be  considered  an  assent  to  those  who  are  to  succeed ;  e  converso 
his  assent  to  one  of  the  subsequent  takers  will  enure  to  the  benefit 
of  the  persons  who  take  prior  interest  in  the  property  bequeathed ; 
and  the  reason  is,  because  the  several  interests  of  the  legatees  con- 
stitute in  the  whole  but  one  estate.  If,  therefore,  a  term  for  years 
were  devised  to  A.  for  life  or  years,  or  for  so  long  as  Jl.  continued 
unmarried,  with  remainder  to  B.  and  the  executor  assented  to  the 
interest  of  Jl.  such  assent  would  extend  to  B.  so  as  to  vest  his  in- 
terest. In  like  manner,  if  the  assent  had  been  given  to  B.  it  would 
have  enured  to  Jl.(s)  And  the  sante  rule  seems  to  hold  in  bequests  of 
chattels  personal,  for  if  the  use  of  a  book,  glass,  &c.  were  bequeathed 
to  C.  with  an  absolute  gift  of  it  after  C.'s  death  to  D.  an  assent  to 
C.  would  also  vest  the  interest  which  D.  took  by  the  will.(J)  The 
law  is  the  same  (though  it  seems  to  have  been  once  otherwise, )(u) 
whether  the  subsequent  legatee  be  entitled  to  a  rent  given  out  of  a 
term,  and  not  to  the  remainder  of  the  term  itself.  Accordingly,  if  a 
term  were  devised  to  Jl.  for  life  or  for  years,  with  a  rent  out  of  it  to 
B.  the  assent  of  the  executor  to  A.  or  to  B.  would,  in  either  case, 
enure  to  the  benefit  of  both ';( x]  and  perhaps  for  this  reason;  as  the 
assent  of  the  executor  is  required  as  well  for  the  benefit  of  creditors, 
as  for  his  own  safeguard,  an  inference  arises  from  his  assent  to  one 
of  the  legatees  of  the  specific  property,  that  he  has  no  occasion  for 
the  term  or  rent  to  pay  debts;  for  if  he  had,  then  his  assent  to  either 
of  the  legatees  would  be  improper,  as  both  ought  to  abate  pro  rata. 
What  will  amount  to  an  assent,  has  been  considered  in  the  preceding 
subdivision. 

C. — Suoh  appears  to  be  the  law,  when  none  of  the  legatees  are  ex- 
ecutors, but  when  the  first  devise  of  a  chattel  is  to  an  executor  for 
life,  with  a  limitation  to  those  persons  in  succession,  the  law  requires 
a  stronger  indication  of  the  executor's  assent  to  his  partial  interest, 
than  where  the  entire  property  in  the  subject  is  bequeathed  to  him. 
The  reason  of  this  distinction  is  stated  by  Gibbs,  C.  J.  in  the  follow- 
ing words  :  "  It  is  clearly  settled,  that  where  an  executor  takes  an 
interest  in  a  leasehold  estate  for  life,  he  must  do  something  more 
than  enter  in  order  to  give  assent  .to  his  legacy  ;  but  where  his  inte- 
rest is  absolute,  his  entry  does  assent  to  the  legacy  :  there  is  a  sub- 
stantial reason  for  this  distinction  ;  for  if  his  general  entry  on  his  life 
estate  were  an  election  to  enter  as  legatee,  it  would  necessarily  con- 
firm the  remainder  devised  over ;  and  that  might  happen  in  cases 
wherein  he  might  want  the  estate  in  remainder  for  sale,  in  order  to 

fr)  7  Taunt  221. 

(«)  Bro.  Abr.  "Devise,"  235.  s.  13.     Plowd.  516.  519.     Com.  Dig.  "Adminis- 
tration," (C.  6.)    Off.  Ex.  236.     Perk.  sect.  574.     3  P.  Will.  12. 
(0  Plowd.  519.  543.  (w)  SBulsU  122.     Bridg.  55.  (.r)  8  Rep.  95. 


SECT.  I.]  Of  the  Executor's  Assent.  571 

pay  the  testator's  debts  :  such  an  assent  would  be  a  devastavit  in  the 
executor,  which  might  be  a  grievous  hardship  to  him.  If  the  devise 
to  him  be  absolute,  the  same  reason  does  not  exist ;  for  he  has  the 
value  of  the  whole  term,  as  an  equivalent,  to  indemnify  himself 
against  the  consequences  of  the  devastavit. "(y) 

The  rule  then  may  be  thus. stated;  that  where  a  partial  interest 
in  a  term  of  years  is  given  to  an  executor,  with  a  limitation  over  upon 
his  death  ;  if  he  enter  into  possession  generally,  he  will  be  consider- 
ed as  entering  qua  executor,  and  not  as  devisee. (2)  In  Pannell  v. 
Fenn,(a]  the  general  rule  is  thus  laid  down :  "  When  a  particular 
interest  in  a  term  is  given  to  executors,  and  the  residue  to  another 
person,  the  entry  of  the  former  shall  not  be  an  election  to  take  it  as 
a  legacy,  except  there  be  an  express  declaration  of  their  intent ;  for 
otherwise  they  should  be  charged  for  the  residue  as  a  devastavit, 
which  the  law  will  not  enforce  ;  but  if  the  entire  term  be  given  to 
the  executors,  it  would  be  otherwise,  for  there  -is  no  mischief." 

It  is  not,  however,  necessary,  that  an  executor-legatee  of  a  term 
should  expressly  declare  his  assent  to  take  as  devisee,  but  his  assent 
may  be  inferred,  by  implication,  from  his  dealing  with  it.  The  fol- 
lowing rule  may  be  laid  down  upon  the  subject,  "  That,  if  an  execu- 
.tor,  in  his  manner  of  administering  the  property  does  any  act  which 
shows  he  has  assented  to  the  legacy,  that  shall  be  taken  as  evidence 
of  his  assent,  but  if  his  acts  are  referrible  to  his  character  of  execu- 
tor, they  are  not  evidence  of  an  assent  to  the  legacy. "(6) 

If  then  the  executor-devisee  demise  the  term  by  the  description  of 
executor,  that  act  cannot  be  construed  an  assent. (c)  Neither  will 
a  demise  of  the  term  in  his  own  name,  without  such  description,  have 
that  effect ;  because  the  act  is  quite  consistent  with  his  power  and 
character  of  executor. (d). 

So  also  if  such  executor,  where  there  are  others  appointed,  solely 
enter,  or  in  addition  demise  the  term,  reserving  the  rent  to  himself, 
executors,  &c.  still  no  assent  to  the  devise  will  be  raised  by  impli- 
cation :  because,  as  executor^  he  alone  had  power  to  demise  the  term, 
and  consequently  to  reserve  the  rent  to  himself,  &c.  The  act,  there- 
fore, is  referrible  either  to  his  character  of  executor  or  legatee  ;  and 
it  is  not  sufficient,  to  constitute  an  implied  assent,  to  show,  that  the 
act  is  equally  applicable  to  the  title  of  legatee,  as  to  the  character 
of  executor,  but  it  must  appear  that  the  act  was  done  rather  in  the 
character  of  legatee,  than  in  that  of  executor.(e) 

In  Doe  v.  Hayes,(f)  the  doctrine  upon  this  subject  was  maturely 
considered.  In  that  case  the  testator  gave  the  interest  he  had  in  an 
estate  for  an  unexpired  term  of  years,  to  his  nephew  Samuel  Hayes 
for  life,  with  remainder  over,  appointing  Samuel  and  two  other  per- 
sons trustees  and  executors,  with  power  for  Samuel  during  life,  and 
afterwards  for  the  surviving  executors  and  trustees,  to  demise  the 
lands  for  twenty-one  years.  Samuel  alone  entered  upon  the  property 
at  the  testator's  death,  and  demised  it  for  fourteen  and  forty-two 
years,  reserving  the  rent  to  himself,  his  executors,  &c.  He  also 
made  the  contract  in  his  own  name,  and  disposed  of  the  estate  by 

(y}  7  Taunt.  321,      (z)  10  Rep.  47.  b.      (a)  Cm.  Eliz.  347-8.  2  P,  Will.  531. 
(A)  7  Taunt.  222.  (c)  1  Leon.  216.  (rf)  7  Taunt.  222. 

(<r    Ibid.  (/)  7  Taunt  217. 


572  Of  the  Executor's  Assent.  [Cn.  XIV. 

his  will,  one  of  his  co-executors  being  alive.  The  estate  was  claim- 
ed by  the  plaintiff's  deriving  title  under  the  will  of  the  first  testator, 
in  opposition  to  the  interest  of  the  defendant,  a  purchaser  from  the 
lessee.  The  lease  could  not  be  supported  under  the  power,  and,  as 
a  demise  by  a  mere  tenant  for  life,  it  determined  upon  his  death; 
but,  as  a  lease  by  an  executor,  it  might  be  supported,  unless  the  ex- 
ecutor Samuel  had  previously  assented  to  the  devise  to  himself.  In 
that  event,  the  legal  interest  in  the  term  in  remainder  after  his  death 
vested  in  the  devisees  over,  which  entitled  them  to  recover;  since 
the  demise  by  the  executor  in  the  character  of  legatee,  could  only 
continue  during  his  life.  And  it  was  decided,  first,  that  the  power 
of  leasing  was  not  legally  executed ;  secondly,  that  the  contents  of 
the  lease  did  not  supply  sufficient  evidence,  that  the  demise  was  made 
by  Samuel  in  the  character  of  devisee  for  life  of  the  term  ;  thirdly, 
that  SamueVs  will  disposing  of  the  property  did  not  furnish  such 
proof^  since  the  evidence  should  be  of  an  assent  to  the  legacy  at  the 
time  of  making  the  lease,  which  a  subsequent  will  could  not  supply  ; 
besides  there  was  no-  decision,  that  a  devise  over,  by  a  tenant  for 
life,  of  that  which  he  could  not  give,  was  evidence  of  his  election  to 
take  as  devisee. (g.)  And  lastly,  that  the  lease,  was  good  as  a  demise 
by  Samuel  in  the  character  of  executor. 

From  what  has  been  said,  it ,  appears  that  the  doctrine  of  Per- 
kins(h)  upon  the  subject,  .followed  by  the  author  of  the  Touch- 
stone,(i)  is  not  law.  It  is  there  laid  down,  that, 'if  a  term  be  devised 
to  one  executor  alone,  for  part  of  the  time,  and  for  the  residue  of  it 
to  a  stranger;  and  that  executor  alone,  after  entering  generally, 
occupy  the  land  himself,  and  his  co-executors  do  not  intermeddle 
with  it ;  there  was,  as  it  seemed,  a  good  assent  to  execute  the  devise 
to  the  person  in  remainder.  An  opinion  expressly  negatived  by  the 
Court  of  Common  Pleas  in  the  before  stated  case  of  Doe  v.  Hayes,(k) 
and  contrary  to  the  case  immediately  put  in  opposition  by  the  learn- 
ed author  of  the  Touchstone :  for,  says  he,  if  a  person  bequeathed 
goods  to  one  of  his  executors  for  life,  with  remainder  to  a  stranger 
for  life,  and  the  executor  alone  get  the  goods  into  his  own  hands  and 
occupy  them  alone  all  his  life  ;  it  seems  that  such  occupation, 
without  some  assent,  will  not  execute  the  gift  in  the  second  legatee. 
The  two  cases  are  in  principle  the  same,  and  we  have  seen  that  such 
an  entry  and  occupation  will  not  be  sufficient  evidence  of  the  assent 
of  the  executor  to  his  own  legacy .- 

But  that  such  an  executor  may  impliedly  show  his  assent  to  take 
as  a  devisee  is  equally  true.  If  then. a  term  of  years  be  given  by  a 
testator  to  his  widow  and  executrix,  during  the  minority  of  his  eldest 
son,  to  the  intent  that,  with  the  profits,  she  bring  up  his  children,  and 
the  residue  of  the  termj  after  the  son  attained  twenty-one,  was  given 
to  him;  the  entry  of  the  widow  generally,  coupled  with  an  applica- 
tion by  her  of  the  rents  in  educating  the  children,  will  amount  to  an 
assent  not  only  of  the  devise  to  herself,  but  of  the  residue  of  the 
term  to  the  eldest  son.(J) 

So  it  will  be,  if  an  executor-devisee  for  life  of  a  term  for  years 

(£•)  Contra,  where  the  executor  is  devisee  of  the  whole  interest  in  a  Term.  Off. 
Ex.  in  margin.  (A)  Sect.  574-5.  (i)  Touchst.  457. 

(fr)  7  Taunt.  217.'  (/)  Plowd.  539. 


SECT.  I.]  Of  the  Executor's  Assent.  573 

enter  upon  the  lands,  explaining  the  act  by  a  declaration  that  he 
claimed  the  estate  as  devisee  for  life.(fc) 

Or  by  applying  the  rents  to  his  own  private  uses.(Z) 
Or  by  payment  of  a  sum  of  money  with  which  the  term  was 
charged  by  the  will.(m) 

For,  in  all  these  instances,  the  acts  of  executor  in  relation  to  the 
term  clearly  showed  that  he  was  not  dealing  with  it  as  executor  but 
as  devisee. 

6.  Of  presumptive  assent  to  legacies. 

It  is  the  duty  of  executors  to  assent  so  soon  as  all  the  debts  and 
expenses  attending  the  administration  have  been  satisfied,  and  there 
is  a  sufficient  residue  to  pay  all  the  legacies.  If,  nevertheless,  they 
refuse  to  do  so,  the  legatees  are  entitled  to  relief  in  equity.  It 
seems,  therefore,  that  an  assent  will  be  presumed  in  the  absence  of 
evidence,  when  executors  die  after  debts  are  paid,  but  before  the 
legacies  are  satisfied,  upon  the  principle,  that  the  executors  acted  in 
conformity  with  their  duty.(  n) 

Suppose  then  a  mortgage  term,  with  the  money  due  upon  it,  to  be 
specifically  bequeathed  to  B.  and  the  debt  to  have  been  for  many 
years  after  the  testator's  death,  continued  on  the  same  security  ; 
that  his  executors  are  dead,  all  his  affairs  having  been  wound  up  by 
them,  and  that  B.  has  been  in  receipt  of  the  interest  for  several 
years.  Under  those  circumstances,  it  is  conceived,  that  B.  would 
be  presumed  to  have  obtained  the  proper  consent  to  his  legacy,  and 
that  he  alone  would  be  competent  to  give  a  good  discharge,%and  to 
re-convey  the  legal  estate  to .  the  mortgagor,  upon  discharge  of  the 
mortgage. 

7.  As  to  conditional  assents. 

These  assents,  like  those  to  the  marriages  of  legatees,  considered 
in  the  last  chapter,  may,  as  it  would  seem,  be  made  dependant  upon 
a  precedent  conditional  event  connected  with  the  administration  of 
the  assets.  It  may  be  the  duty  of  the  executor  to  suspend  his  assent 
upon  a  contingency ;  and  there  appears  to  be  po  more  objection  to 
his  having  the  power  of  so  doing,  than  to  his  power  of  consenting 
conditionally  to  the  marriages  of  legatees,  when  his  assent  is  requir- 
ed by  the  testator.(o)  If  then  to  an  application  for  a  legacy,  the 
executor  answer,  he  will  pay  it,  provided  the  assets  shall  appear  suf- 
ficient to  satisfy  all  demands,  after  he  has  clearly  ascertained  the 
amounts  of  debts  and  credits,  or  that  he  will  assent  and  pay  the 
legacy  if  the  balance  of  an  unsettled  account  between  the  testator 
and  B.  shall  be  found  of  a  particular  amount  in  favour  of  the  estate; 
it  is  presumed  that  these  and  similar  conditional  assents  will  be  good 
i.  e.  there  will  be  no  assent  until  the  contingencies  happen. 

But  when  the  condition  is  of  a  nature  which  does  not  relate  to  the 
circumstances  of  the  estate,  and  is  consequently  such  as  an  execu- 
tor has  no  authority  to  impose,  it  should  seem  that  the  assent  would 
be  absolute,  and  the  condition  rejected,  whether  the  condition  were 
precedent  or  subsequent.  Thus,  if  the  executor  declared  his  assent 
to  the  bequest,  provided  the  legatee  went  to  York,  and  there  exe- 

(£)  Plowd.  516.     Perk,  sect,  574.     Welcden  v.  Elkington,  3  Dyer,  358.  b. 
(/)  1  Roll.  Abr.  619.  .    .        (m)  Young- v.  Holmes,  1  Stra.  70. 

(n)  See  2  P.  Will.  532.  (o)  Ante,  p.  542. 

VOL,.   I.  4    D 


574  Of  the  Executor's  Assent.  [Cn.  XIV. 

cuted  a  particular  commission  for  the  executor's  personal  benefit,  it 
is  presumed  the  assent  would  be  absolute  ;  for  the  assent  implied  an 
admission  of  assets,  and  the  condition  was  irrelevant  and  improper. 
So  also,  if  the  legacy  were  of  goods,  and  the  executor  delivered  them 
to  the  legatee,  upon  condition  to  re-deliver  them  to  him  at  a  parti- 
cular time,  the  assent  would  be  complete  and  the  condition  void.(p) 

The  only  question  which  remains  is — 

8.  Whether  an  executor  can  retract  his  assent  after  it  has  been 
given. 

Where  assent  has  been  completed  by  payment  or  possession  of 
the  subject  of  bequest,  retraction  is  too  late.  '  But  if  assent  be  not 
so  perfected,  and  its  recal  is  not  attended  with  injury  to  a  third  per- 
son, as  to  a  bonafide  purchaser  from  the  legatee  on  the  faith  of  such 
assent,(<7)  it  seems  only  Reasonable  that  the  executor  should  have  an 
opportunity  to  retract  it  under  particular  circumstances.  Suppose 
then  an  executor,  honestly  intending  to  do  his  duty,  assent  lo  a  legacy 
upon  a  reasonable  ground  for  considering  that  the  assets  are  fully 
sufficient  to  answer  all  demands  upon  them,  but  unknown  4ebts  are 
unexpectedly  claimed,  which  occasion  a  deficiency,  and  then  the 
executor  withdraws  his  assent,  it  would  be  harsh  to  deny  him  the 
privilege.  With  a  little  variation  of  expression,  we  may  apply  to 
such  and  the  like  instances  the  judicious  observations  of  Lord  Eldon 
on  a  similar  subject  before  stated. (r)  "  As  a  general  principle,  it 
would  be  dangerous  to  hold,  if  at  a  particular  time  (an  executor) 
upon  a  conscientious  sense  of  duty,  think  himself  required  to  assent, 
which  he  accordingly  gives,  but  previously  to  (payment)  becomes 
acquainted  with  circumstances  which  ought  at  first  to  have  operated 
to  make  him  withhold  His  consent,  that  he  shall  riot  afterwards  alter 
his  mind." 

SECT.  II.  Of  the  Payment  of  Legacies. 

1.  Out  of  what  fund. 

It  is  a  general  rule,  as  was  noticed  in  the  twelfth  chapter,(s)  that 
the  personal  estate  is  the  primary  fund  for  the  payment  of  legacies. 
When  the  real  estate  is  merely  charged  with  those  demands,  the  per- 
sonal assets  are  to  be  applied  in  the  first  place  towards  their  liquida- 
tion. And  when  the  real  estate  is  first  applicable  to  discharge  the 
legacies  in  exoneration  of  the  personal,  we  have-  attempted  to  show 
in  the  chapter  last  referred  to. 

It  may  happen  that  a  part  of  the  personalty  may  be  specifically 
designated  by  the  testator  for  the  payment  of  a  particular  legacy ; 
in  which  case  the  fund  described  will  be  applicable  to  the  discharge 
of  the  favoured  legacy,  in  preference  to  other  general  legacies,  as 
stated  in  the  fifth  chapter,  which  treats  of  the  abatement  of  specific 
legacies. (t]  But  a  question  may  arise — 

2,  Whether  the  payments  are  to  be  made  in  sterling  money  or  in 
currency. 

It  seems  to  be  settled  as  a  general  rule,  founded  upon  the  presum- 
ed intention,  that  legacies  are  to  be  paid  in  the  money  of  the  coun- 
try in  which  the  testator  is  domiciled,  and  the  wills  are  made.  It 

(fi)  1  Leon.  129-130.  4  Reports,  28.  b.          (?)  1  Ch.  Ca.  257.  2  Freem.  142. 
(r)  Ante,  p.  542-3.  («)  Ante,  p.  463.  (/)  Ante,  p.  255. 


SECT.  II.]  Of  the  Executor's  Jlsstnt.  575 

follows,  therefore,  that  if  a  man,  resident  in  Jamaica  or  Ireland,  make 
his  will, -leaving  legacies  generally  to  persons  in  England,  they  will 
be  payable  in  Jamaica  or  Irish  currency.  If  such  be  the  rule  when 
legacies  are  given  generally,  a  fortiori  it  must  prevail  when  aided  by 
the  testator's  intention,  more  clearly  apparent  from  his  giving  some 
legacies  in  sterling  or  lawful  money  of  Great  Britain,  and  others 
without  any  such  description.  Consequently,  the  latter  will  be  pay- 
able in  the  currency  of  the  country  where  the  testator  was  domiciled. 
In  the  case  of  Sounders  v.  Drake,(u)  Lord  Hardwioke  acknowledged 
the  rule,  and  said,  "  If  the  testator  (resident  in  Jamaica]  had  given 
all  his  legacies  generally,  they  must  have  been  paid  in  Jamaica  mo- 
ney, nor  would  the  legatees  living  in  England  have  made  any  dis- 
tinction, for  the  residence  of  the  person  devising  must  decide  it." 
And  his  predecessor,  Lord  Macclesjield,  expressed  the  same  opinion. 
"  If  (said  he)  a  man,  by  will  made  in  England,  give  a  legacy  of  SO/. 
it  must  be  intended  English  money  "(x) 

In  Saunders  v.  Drake,(y)  the  case  before  referred  to,  the  testator 
being  domiciled  and  making  his  will  in  Jamaica,  gave  in  the  first 
place  certain  legacies  to  be  paid  in  sterling  money,  and  immediately 
afterwards  two  legacies,  without  any  direction  as  to  their  payment 
in  sterling  money.  One  of  the  two  latter  legacies  was  claimed  in 
English  currency.  And  Lord  Hardwicke  was  of  opinion,  as  before 
stated,  that  the  residence  of  the  person  devising  was  to  determine 
the  question  as  to  the  legacies  given  generally,  and  therefore  the 
legatee  was  to  be  paid  in  Jamaica  currency;  but  as  to  the  legacies 
directed  to  be  paid  in  sterling  money,  it  was  his>  Lordship's  opinion 
that  they  ought  to  be  paid  in  the  currency  of  England,  notwith- 
standing the  testator  resided  in  Jamaica. 

So  in  Pierson  v.  Garnet,(z]  the  Bishop  of  Clogher  in  Ireland 
gave  several  legacies  expressly  to  be  paid  in  sterling  or  English 
money,  and  others  indeterminate  as  to  the  fund.  The  will  being 
made  in  Ireland  the  question  was,  whether  the  latter  legacies  should 
be  paid  in  sterling  money  or  Irish  currency.  And  the  Master  of 
the  Rolls  determined  that  they  should  be  discharged  in  the  cur- 
rency of  Ireland,  upon  the  authority  of  the  last  case,  declaring  that 
legacies  must  be  paid  in  the  currency  of  the  country  where  the  will 
is  made. 

Also  in  Malcolm  v.  J\lartin,(a)  the  testator  having  his  domicile  in 
the  island  of  Antigua,  made  his  will  there,  and  gave  to  his  sister 
the  interest  of  1000/.  sterling  for  life,  and  the  capital  at  her  death 
between  the  plaintiffs.  He  then  bequeathed  to  the  children  of  Mrs. 
Glass  and  to  the  children  of  Mrs.  Lyon  (both  of  them  then  dead) 
"  the  interest  of  1500/.  for  life,"  &c.  Whether  the  latter  legacy 
was  to  be  paid  in  Antigua  currency  or  in  sterling  money  of  Eng 
land  was  the  question;  and  Lord  Jllvanley,  M.  R.  directed  the  le- 
gacy given  in  sterling  money  to  be  paid  in  sterling  money,  and  that 
bequeathed  generally  to  be  paid  in  Antigua  currency. 

Such  being  the  rule  on  this  subject  in  regard  to  personal  bequests, 
it  remains  to  be  considered,  -whether  a  charge  of  legacies  upon  real 
estate,  or  the  gift  of  them  in  the  first  instance  out  of  that  fund,  will 
make  any  difference.  And, 

(«)  2  Atk.  466.      (.r)  2  P.  Will.  89.      (y)  2  Atk.  465.  2  Blights  Parl.  Ca.  91. 
(z)  2  Bro.  C*C.  39.  47.     Pre.  Ch.  201  in  notis.  S.  C.         (a)  3  Bro,  C.  C.  50. 


576  Of  the  Executor's  Assent.  [Cn.  XIV. 

FIRST,  When  the  legacies  arc  made  charges  upon  lands  of  a  tes- 
tator situated  in  a  country  where  he  is  not  domiciled. 

It  is  to  be  presumed,  as  before  noticed,  that  a  testator,  in  dis- 
posing of  his  property,  intends  it  to  be  governed  and  regulated  by 
the  laws  of  the  nation  in  which  he  resides,  and  where  the  will  is 
made,  without  regard  to  the  circumstance  of  the  situation  of  his 
estates.  It  follows  from  this  presumption,  that  if  a  man  domiciled 
in  England,  but  seised  of  plantations  in  the  West  Indies  or  of 
estates  in  Ireland,  charge,  by  will  made  in  this  country,  those 
estates  with  legacies  generally,  without  mentioning  whether  the 
sums  are  to  be  computed  in  sterling  money  or  in  currency,  they  will 
be  payable  in  sterling  money  of  England.  We  accordingly  find 
Lord  Macclesfield  in  JVallis  v.  Brightwell,  stating  the  doctrine  in 
these  words :  "  If  one,  by  will  made  in  England,  give  a  legacy  of 
801.  it  must  be  intended  English  money,  and  it  will  be  the  same 
thing  though  charged  on  land  in  Ireland.  And  for  the  same  reason 
that  a  single  payment  of  80Z.  will  be  taken  tn  be  English  money,  so 
shall  an  annual  payment  of  80Z.  receive  such  construction. "(6)  It 
is  true,  that  in  the  ordinary  case  of  a  mere  charge  upon  lands  in 
Ireland,  &c.  the  money  is  payable  in  Irish  currency.  But  charges 
created  by  wills  and  marriage  settlements  are  to  be  construed  by 
the  intention  of  the  parties.  Their  meaning,  as  to  the  money  being 
payable  in  English  or  Irish  currency,  is  to  be  collected  from  words 
immediately  applicable  to  the  point,  from  the  context  of  the  instru- 
ment, and  from  each  and  every  part  of  it.(c)  It  appears  from  the 
cases  to  be  the  primd  facie  presumption,  that  money  charged  upon 
lands  in  Ireland,  by  the  will  of  a  person  domiciled  in  England,  and 
made  there,  was  intended  to  be  paid  in  English  currency. 

SECOND,  When  the  provision  is  given  as  a  rent-charg«  out  of 
lands,  in  Ireland,  the  will  being  made  and  the  testator  domiciled  in 
England. 

If,  as  we  have  seen,  the  rule  of  decision  in  these  cases  is  founded 
upon  intention,  and  it  is  to  be  presumed  primd  facie  that  the  testa- 
tor intended  the  measure  of  his  bounty  to  be  regulated  by  the  cur- 
rency of  the  country  where  he  was  domiciled  and  his  will  made, 
without  regard  to  the  currency  of  the  place  where  his  estates  were 
situated  ;  it  seems  difficult,  upon  principle,  to  admit  of  the  presump- 
tion being  repelled,  from  the  mere  circumstance  of  the  real  estate 
being  made  the  primary  or  sole  fund  for  satisfying  the  provision.  It 
is  not  any  objection,  that  by  the  law  of  the  country  where  the'  lands 
lie,  a  tender  of  the  nominal  amount  in  currency  will  be  a  sufficient 
payment,  though  less  than  the  real  amount  in  value  in  the  currency 
of  the  place  where  the  will  was  made.  For  if  the  testator,  in  fixing 
the  quantum  of  charge,  is  to  be  considered  to  have  done  so  primn 
fade  in  English  currency,  and  his  power  is  indisputable,  then  a 
tender  of  less  in  value  than  the  sum  mentioned  in  the  will,  in  the 
currency  of  the  country  where  the  lands  are  situated,  cannot  be  a 
satisfaction  of  the  demand. 

In  Wallis  v.  Brightwell,(d)  the  testator  lived  with  his  wife  in  Eng- 
land, and  by  will  made  in  England  he  devised  his  lands  in  Ireland 

(A)  2  P.  Will  89.  and  see  Phi/ifisv.  Earl  ofdnglesea,  stated  infra,  p.  578. 
(c)  2  Bligh.  Parl.  Ca.  88.  (d)  2  P.  Will.  88.     2  Bligh.  91. 


SECT.  II.]  Of  the  Executors  Assent.  577 

to  a  trustee  for  five  hundred  years,  "  in  trust  out  of  the  rents  and 
profits  to  pay  SQL  a  year  to  his  wife  for  life."  It  was  argued,  that 
no  place  being  appointed  for  payment,  and  the  fund  in  Ireland,  the 
annuity  ought  to  be  paid  in  Irish  currency  or  subject  to  the  charge 
of  remittance.  But  Lord  Macclesfield  decided,  that  the  will  being 
made  in  England  where  the  parties  resided,  and  the  provision  being 
for  a  wife,  it  should  be  intended  that  such  provision  was  estimated 
in  the  money  of  the  country  where  the  will  was  made'. 

The  last  case  is  a  direct  authority,  that  where  a  testator  residing 
in  England,  by  will  made  there,  devises  his  Irish  estates  in  trust 
to  pay  out  of  the  rents  an  annuity  to  an  individual  also  residing  in 
England,  the  annuity  is  to  be  paid  in  English,  not  in  Irish  currency 
It  is  true  that  in  Pbipps  v.  .Anglesea,  below  stated,  it  may  be  in- 
ferred to  have  been  the  opinion  of  the  Court  that  there  is. a  differ- 
ence between  a  gross  sum  charged  upon  lands  in  Ireland  and  a  rent 
granted  out  of  them,  viz.  thaf  the  latter  is  payable  in  Ireland,  and 
in  Irish  currency,  and  the  former  not  so.  But.it  must  be  remarked, 
that  the  question  as -to  rent  being  so  payable  was  not  the  point  in 
question  in  that  cause,  and  the  intimation  of  opinion  there  given 
amounts  only  to  a  mere  dictum  of  the  Court,  to  which  much  impor- 
tance is  not  to  be  attached. (e) 

If  such  be  the  rule  of  construction,  where  a  yearly  sum  is  directed 
to  be  paid  put  of  the  rents  of  an  estate  abroad  generally,  a  fortiori 
the  rule  might  be  the  same  when  the  instrument  expresses  the  an- 
nuity to  be  "  lawful  money  of  Great  Britain" 

Thus  in  the  case  of  the  Marchioness  of  Lansdowne  and  the  Earl 
of  Lansdowne,  on  appeal  from  the  Court  of  Chancery  in  Ireland,(f) 
the  greater  part  of  the  Lansdowne  family  estates  situated  partly  in 
England  and  partly  in  Ireland,  were  in  the  year  1794,  settled  by  .the 
then  Earl  and  his- eldest  son  the  Earl  of  Wycome,  and  a  life  estate 
therein  limited  to  the  use  of  his  son  after  the  death  of  his  father, 
with  a  power  to  jointure  any  woman  he  might  marry  with  "  any  an- 
nual sum  of  money  or  yearly  rent-charge  tax-free  and  without  de- 
duction, to  be  issuing  out  of  and  chargeable  upon  all  or  any  part  of 
the  manors,  &c.  situate  in  the  said  kingdom  of  Ireland,  not  exceed- 
ing 3000/.  of  lawful  money  of  Great  Britain."  The  son,  by  deed 
executed  in  England,  exercised  his  power  in  appointing  to  the  ap- 
pellant a  yearly  rent  charge  "  of  3000/.~  of  lawful  money  of  Great 
Britain,  to  be  issuing  out  of  and  charged  upon  the  same  manors," 
&.c.  All  the  parties  resided  and  were  domiciled  in  England  when 
the  power  was  executed,  and  the  appellant  claimed  3000Z.  a  year 
in  English  currency  and  payment  of  it  in  England.  The  House 
of  Lords  acc.eded  to  the  first  of  those  two  demands,  as  by  the  power 
and  the  appointment  the  money  was  directed  to  be  paid  in  lawful 
money  of  Great  Britain)  but  it  refused  the  second,  because  there 
was  no  indication  of  an  intent  that  the  rent-charge  was  to  be  paid 
in  England. 

3.  The  last  case  is  an  authority,  that  where  lands  in  one  part  of 
the  dominions  of  these  kingdoms  are  subjected  by  the  will  or  ap- 
pointment of  a  person  domiciled  in  another,  to  the  payment  of  a  sum 
of  money  in  the  currency  of  the  latter,  the  exchange  upon  remit- 

(c)  See  the  case  and  observations  infra.  (/)  2  Bligh.  Parl.  Ca.  60. 


578  Of  the  Executor's  Assent.  [Cn.  XIV. 

tance  is  to  be  borne  by  the  legatee,  because  the  owner  of  the  estate 
is  under  no  obligation  to  tender  the  money  at  any  place  except 
upon  the  lands. (g)  '  But  it  is  equally  clear,  that  if  from  the  circum- 
stances of  the  case  it  can  be  inferred  that  the  money  was  not  only 
intended  to  be  paid  in  English  currency,  but  also  in  England,  the 
person  or  estate  charged  with  the  obligation  must  bear  the  expense 
of  remittance. 

.  Accordingly  in  Willis  \.  Brightwellj(h)  Lord ' Macclesfield  infer- 
red, from  the  circumstance  of  the  testator  having  made  leases  of 
his  Irish  estate,  reserving  just  so  much  rent  to  be  paid  in  London, 
free  from  taxes,"as  would  be  sufficient  to  discharge  all  the  annuities 
to  which  they  were  liable,  that  he  meant  his  widow's  annuity  of  SOL 
payable  out  of  those  rents,  to  be  remitted  to  her  in  England,  with- 
out deduction  of  the  exchange. 

Upon  a  similar  principle,  the  decision  in  Phipps  v.  the  Earl  of 
•flnglesea(i)  was  founded.  It  appeared  that  by  a  settlement  made 
upon  the  marriage  of  the  Earl  with  a  daughter  of  the  countess  of 
Dorchester,  a  term  of  five  hundred  yeai's  was  created  in  his  Irish 
estates,  in  trust  to, raise  12,OOOZ.  for  the  portions  of  daughters;  but 
it  seems  from  the  argument,  .that  the  settlement  provided  a  rent- 
charge  out  of  the  same  estates  for  the  wife's  jointure,  with  an  ex- 
press direction  that  it  should  be  paid  in  London,  without  abate- 
ment or  deduction  for  the  exchange  ;  whereas  in  the  declaration  of 
the  trust  of  the  term  for  raising  the  portions,  there  was  no  such 
direction.  The  parties  to  the  settlement  resided  in  England,  and 
in  a  suit  by  the  daughter  (sole  issue  of  the  marriage)  and  her  hus- 
band to  have  the  portion,  with  the  rest  .of  her  fortune,  settled,  it 
was  the  first  point  in  the.  cause,  whether 'the  12,OOOZ,  charged  by 
means  of  the  term  upon  the  lands  in  Ireland  should  be  paid  in 
England,  without  abatement  or  deduction  >for  the  exchange  from 
Ireland  to  England.  And  Lord  Parker,  C.  was  of  opinion,  that 
the  portion  ought  to  be  paid  where  the  contract  was  made  and  the 
parties  resided,  and  not  in  Ireland  where  the  lands  lay  which  were 
charged  with  the  payment.  .For  that  it  was  a  sum  in  gross,  and 
not  a  rent  issuing  out  of  land.  A.nd  his  Lordship  remarked  it  was 
certainly  the  intention  of  the  parties  that  the  portion  should  be  paid 
in  England,  and  not  to  send  the  young. lady  to  Ireland  to  get  her 
portion. 

Lord  Eldon made  the  following  remarks  upon  the  last  case  :  -"It 
is  true  that  in  Phipps-'\.  Lord  Jlnglesea,  the  distinction  is  taken  in 
the  judgment,  which  was'urged  in  this  case  at  the  bar,(fe)  that  there 
it  was  a  sum  in  gross,  and  not  a  rent  issuing  out  of  land ;  but  that 
seems  to  be  in  answer  to  that  part  of  the  argument  in  that  case, 
which  is  founded  on  the  different  expressions  iof  the  settlement  as 
to  the  jointure  of  the  wife  and  the  portions  of  the  daughters.  As 
to  the  former,  which  is  by  name  a  rent-charge  it  is  provided  that  it 
shall  be  paid  in  London,  without  deduction  for  the  exchange; 
whereas  in  the  declaration  of  the  trust  of- the  term  created  for  rais- 
ing the  portions,  these  words  are  omitted,  and  it  is  only  said  in  trust 

(,§•)  2  Bligh.  Pavl.  Ca.  95.  (A)  Ante,  p  576-7.  ' 

(i)  5  Vin.  Abr.  209.  pi.  8.  8vo.  ed.     1  P.  Will.  696.  S.  C.     2  Bligh.  Par.  Ca.  89. 

(k)  Lansdoivne  v.  Lansdoivne,  su/ira,  p.  577. 


SECT.  II.]  Of  the  Executor  s  Assent.  579 

to  raise  12,000?.  Upon  this  point  of  the  argument  the  Court  seems 
to  have  been  of  opinion,  that  in  the  case  of  a  rent-charge,  the  addi- 
tion of  such  words  might  be  necessary,  but  that  the  question  as  to 
a  sum  in  gross  (which  the  portion  in  that  case  was  considered  to  be) 
was  to  be  decided  on  circumstances,  and  accordingly  the  decision 
rests  m  substance  upon  the  domicile,  and  the  presumed  intention  of 
parties  resident  in  England,  that  a  portion  secured  for  a  daughter 
should  be  paid  to  her  in  England.(l) 

Where  the  testator  is  domiciled  abroad,  and  by  will,  made  fherer 
gives  legacies  in  the  current  coin  of  the  place  to  persons  residing 
in  this  Country,  the  legatees  are  entitled  to  be  paid  in  England  the 
value  at  which  that  coin  was  estimated  where  the  testator  resided, 
at  the  end  of  the  year  next  after  his  death.  Consequently  the  ex- 
change upon  the  remittance  will  fall  upon  his  estate. 

This  was  determined  in  the  case  of  Cockerell  v.  Barber,(m) 
where  Mr.  Barber,  domiciled  in  India  and  residing  at  Calcutta, 
gave,  amongst  others,  a  legacy  of  30,000/.  sicca  rupees  to  Mr. 
Cockerell  resident  in  this  country.  What  was  the  sum  in  pounds 
to  be  paid  in  England**  was  the  question.  And  Lord  Eldon  thus 
expressed  himself:  "  in  all  the  cases  reported  on  the  wills  of  per- 
sons in  Ireland  or  Jamaica -and  dying  there,  and  Dice  versa  in  this 
country,  some  legacies  being  expressed  in  money-sterling  and  others 
in  sums  without  reference  to  the  nature  of  the  coin  in  which  they 
are  to  be  paid  ;  the  legacies  are  directed  here  to  be.  computed  ac- 
cording to  the  value  of  the  currency  of  the  country  to  which  the 
testator  belonged,  or  where  the  property  was  situated.  And  I  appre- 
hend no  more  was  done  in  siich  cases,  than  to  ascertain  the  value 
of  so  many  pounds  in  the  current  coin  of  the  country,  and  the  pay- 
ment of  that  amount  out  of  the  funds  in  Court.  On  the  other  hand, 
I  do  hot  believe  the  Court  has  ever  said  it  would  not  look  at  the 
value  of  the  current  coin,  but  would  take  it  as  bullion.  At  the 
time  of  Wood's  half-pence  in  Ireland,  whatever  was  their  worth, 
payment  in  England  must  have  been  according  to  their  nominal 
current  value,  not  the  actual  value.  So,  whatever  was  the  current 
value  of  the  rupee  at  the  time  when  this  legacy  ought  to  be  paid, 
is  the  rat lo  according  to  which  payment  must  be  made  here  in  pounds 
sterling.  If  twelve  of  Wood's  half-pence  were  worth  sixpence,  in 
this  Court  sixpejnce  must  have  been  the  sum  paid;  and  in  a  payment 
in  this  Court  the  cost  of  remittance  has  nothing  to  do  with  it;  so- 
if  the  value  of  30,OOOZ.  rupees  at  the  time  the  payment  ought  to 
have  been  made  in  India,  was  10,OOOZ.  that  is  the  sum  to  be  paid 
here,  without  any  consideration  as  to  the  expense  of  remittance." 
His  Lordship  declared,  that  this  and  the  other  legacies  were  to  be 
paid  according  to  the  current  value  of  the  sicca  rupee  in  Calcutta* 
We  shall  proceed  to  consider  in  the  next  place — 

4.  At  what  time  legacies  are  to  be  paid.     And  first, 

A. — When  the  bequest  is  of  a  gross  sum  of  money. 

Where  legacies  are  given  generally  to  persons  under  no  disability 
to  receive  them,  the  payments  ought  to  be  made  at  the  end  of  a  year 
next  after  the  testator's  decease.  The  executor  is  not  obliged  to 

( /)  2  Bligh.  90.  also.  p.  95. 

(m)  16  Ves.  461.  465.  and  see  Cashv.  Kennion,  11  Ves.  314. 


580  Of  the  Executor's  Assent.  [Cn.  XIV. 

pay  them  sooner,  although  the  testator  may  have  directed  them  to 
be  discharged  within  six  months  after  his  death ;  because  the  law 
allows  the  executor  one  year(n)  from  the  demise  of  the  testator  to 
ascertain  and  settle  his  testator's  affairs  ;  and  it  presumes  that  at  the 
expiration  of  that  period,  and  not  before,  all  .debts,  &c.  have  been 
satisfied,  and  the  executor  to  be  then  able  properly  to  apply  the  re- 
sidue among  the  legatees,  according  to  their  several  rights  and  in- 
terests. But  if  the  state  of  the  testator's  circumstances  be  such,  as 
to  enable  the  executors  to  discharge  legacies  at  an  earlier  period, 
they  have  authority  to  do  so ;  for  the  legacies .  are  due  at  the  death 
of  the  testator,  and  the  year  allowed  the  executors  previous  to  com- 
pulsory payment'is  merely  arrangement  for  their  convenience  and 
safety. (o)  And  when  legacies  are  given  to  infants  to  be  paid  at 
twenty-one,  with  or  without  a  limitation  over  to  the  survivors  upon 
the  death  of  any  of  them -dying  under  that  age,  each  child  will  be 
entitled  to  receive  his  legacy  or  proportion  upon  attaining  that  age, 
as  was  shown  in  the  second  chapter. (p)  And  it  seems  that  if  the 
money  be  in  the  Court  of  Chancery,  it  will  permit  a  transfer  to  a 
person  duly  authorized  by  him  to  accept  it.(q) 

When  a  legacy  given  generally,  so  as  to  fall  within  the  before 
mentioned  rule,  is  subject  to  a.  limitation  over  upon  a  subsequent 
event ;  the  devesting  contingency  will  hot  prevent  the  legatee  from 
receiving  his  legacy,  at  the  end  of 'the  year  after  the  testator's  death  ; 
and  he  is  under  no  obligation  to  give  security  for  repayment  of  the 
money,  in  case  the  event  shall  happen.  The  principle  seems  to  be 
that,  as  the  testator  -has  entrusted  him  with  .the  money  without  re- 
quiring a  security,,  no  person  has  authority  to  require  it.(r) 

In  Griffiths  v.  Smithes]  the  plaintiff  .was  entitled,  under  the  will 
of  his  uncle,  to  an  estate  tail  in  remainder,  expectant  upon  the  de- 
termination of  a  precedent  estate  tail  limited  upon  an  estate  for  life, 
in  his  uncle?s  real  estates.  By  the  same  will  a  legacy  of  20001.  was 
given  to  the  plaintiff  upon  the  death  of  the  testator's  widow,  to  be 
paid  at  twenty-one  ;  provided  if  he  at  any  time  became  seised  -of  the 
testator's  real  estate,  the  legacy  should  go  over  to  other  persons. 
The  plaintiff  attained  his  age  of  twenty-one  after  the  death  of  the 
testator,  and  the  real  estate  not  having  come  to  him,*he  claimed  im- 
mediate payment  'of  the  2QOOZ.  And  Lord  Rosslyn  ordered  the 
money  to  be  paid  to  the  plaintiff,  and  no  security  appears  to  have 
been  required  from  him. 

Upon  the  authority  of  the  last  case,  Sir  W.  Grant  determined  the 
case  of  Fawkes  v.  Gr.ay.(t}  There  Mrs.  Millegan  gave  a  legacy  of 
lOOOi.  to  Mary  Fawkes,  but  on  condition  that  if  she  succeeded  to 
a  particular  estate  by  the  determination  of  an  estate  tail  in  fMarian 
Paterson,  the  legacy  was  to  be  void.  Notwithstanding  Marian  was 
living,  Mary  Fawkes  insisted  that  she  was  entitled  to  receive  the 
money  for  payment  of  which  she  commenced  the  suit.  The  legacy 
had  been  invested,  and  Sir  W.  Grant  directed  the  stock  in  which  it 
stood,  to  be  transferred  to  Mary  and  'without  security. 

(n)  See  Benson  v.  -Maude,  6  Mad.-  15.  '   (o}-Jtnte,  p.  376. 

(/*)  Ante,  Ch.  II.  sect.  2  sub-div.  4. 

(7)  Hillv.  Chap.rn.an,  11  Ves.  239.  and  see  Carr  v.  Eastabrook,  2  Cox.  390. 
(r)  Vide  ante,  Chap.  X.  sec.  5.  p.  404-5.      (s)  1  Ves.  jun.  97.     (0  18  Ves.  131. 


SECT.  II.]  Of  the  Payment  of  Legacies.  581 

But  it  seems,  where  a  legacy  is  given  upon  a  condition  to  do  or 
abstain  from  a  certain  act,  and  the  time  of  payment  is  arrived,  a 
court  of  equity  will  require  security  from  the  legatee  for  the  obser- 
vance of  the  condition.  Thus,  in  Colston  v.  Morris,  a  legacy  was 
given  to  a  father,  upon  condition  that  he  did  not  interfere  with  the 
education  of  his  daughter ;  on  a  bill  by  the  father  for  the  legacy, 
the  Court  required  from  him  security  to  that  effect,  to  be  approved 
by  the  Master,  and  directed  the  costs  of  the  proceedings  to  be  paid 
out  of  the  legacy. (w) 

When,  however,  there  are  outstanding  liabilities  that  may  create 
demands  upon  the  assets  of  the  testator,  but  which,  at  the  time  of  the 
legatees  becoming  entitled  to  call  for  payment  of  their  legacies,  de- 
pend upon  contingencies  that  may  or  may  never  ripen  those  liabili- 
ties into  debts  or  duties,  a  court  of  Equity  will  not  speculate  upon 
the  decisions  of  a  court  of  Law,  and  oblige  the  executor  to  part  with 
the  fund  either  to  particular  or  residuary  legatees,  without  a  suffi- 
cient security  for  his  indemnity  against  legal  consequences.  The 
reason  seems  to  be,  that,  as  the  Court  cannot  protect  the  executor 
against  the  claims  of  the  persons,  who  may  eventually  become  cre- 
ditors of  the  testator,  it  would  be  unjust  to  compel  a  distribution 
when  it  would  place  the  executor  in  jeopardy.  It  results  from  these 
remarks,  that  if,  at  the  time  before  mentioned,  a  bond  of  the  testa- 
tor be  outstanding,  with  a  condition  which  may  be  broken ;  or  he 
have  entered  into  covenants,  that  may  render  his  estate  liable  in 
damages ;  in  such  and  the  like  instances,  the  executor  may  and  ought 
to  insist  upon  an  ample  indemnity,  before  he  pay  the  legacies  or 
part  with  the  residue. 

This  point  seems  to  have  been  fully  considered  in  Simmons  v.  Bol- 
land.(x)  In  that  case,  the  testator  Simmons  was  a  lessee  for  years  of 
a  farm  under  the  mayor  and  commonalty  of  Canterbury,  at  a  certain 
rent ;  and  under  covenants  to  pay  it,  and  for  repairs,  &c.  It  was 
provided  that  on  non-performance  of  all  or  any  of  those  covenants, 
the  lease  should  be  void,  and  a  right  of  entry  was  reserved  to  the 
lessors.  Simmons  devised  this  farm  with  his  real  and  personal  es- 
tates to  the  defendant,  and  another  person,  (who  was  dead,)  whom 
he  named  executors  in  trust  to  sell ;  and  after  discharging  debts  and 
legacies,  to  invest  the  proceeds  in  their  names  upon  certain  trusts ; 
subject  to  which,  he  gave  the  entire  residue  to  the  plaintiff  at  his 
age  of  twenty-five.  The  executors  having' discharged  all  debts  and 
legacies,  without  resorting  to  the  farm  and  other  real  estates,  deli- 
vered possession  of  them  to  the  plaintiff,  who  had  attained  the  above 
age.  There  was  also  a  personal  residue  which  they  transferred  to 
him,  with  the  exception  of  so  much  as  the  defendant  the  surviving 
trustee,  thought  proper  to  retain  as  a  security  against  any  claim  that 
might  be  made  upon  him,  as  devisee  in  trust,  and  executor  of  the 
testator-lessee  for  rent  due,  or  to  accrue,  or  in  respect  of  the  present 
or  any  future  breach  or  non-performance  of  any  of  the  covenants. 
The  defendant  admitted  that  there  were  no-  subsisting  breaches  of 
covenant,  and  no  rent  in  arrear.  Under  those  circumstances,  the 
plaintiff  claimed  that  part  of  the  residue,  which  was  retained  by  the 

(«)  6  Mad.  89.  .      (.r)  3  Mer.  547. 

FOL.  I.  4   E 


582  Of  the  Payment  of  Legacies.  [Cn.  XIV. 

defendant,  insisting  that,  as  there  was  no  actual  demand  upon  the 
fund,  the  defendant  would  be  justified  at  law  in  disposing  of  the 
whole,  and  consequently  ought  not  to  retain  any  part  of  it  from  him; 
and  a  variety  of  cases  and  dicta  were  cited  on  both  sides. (y)    How- 
ever the  relief  sought  in  equity  depended  upon  the  legal  question; 
whether  an  executor  can  safely  make  payment  of  legacies,  or  deliver 
over  a  residue,  while  there  is  an  outstanding  covenant  of  his  testa- 
tor which  had  not  been  and  never  might  be  broken.     Sir  W.  Grant, 
after  noticing  the  case  of  Ecles  v.  Lambert  below  referred  to,  stated 
another  of  Nector  v.  Gennet,(z]  where  the  same  question  arose,  al- 
though in  a  different  shape.     His  Honour  thus  detailed  the  circum- 
stances :  A  legatee  sued  in  the  Ecclesiastical  Court  for  his  legacy. 
The  executor  pleaded  that  the  testator,  who  was  keeper  of  a  prison, 
was  bound  in  an  obligation  to  the  sheriff  (to  an  amount  exceeding 
the  entire  value  of  the  property)  for  the  safe  keeping  of  the  prisoners 
committed  to  his  charge ;  which  obligation  had  become  forfeited, 
in  consequence  of  a  judgment  against  the  sheriffs  in  an  action  for  an 
escape  ;  and  the  executors  had  therefore  nothing  in  their  hands  to 
answer  the  demand.     The  plea  was  disallowed  ;  upon  which  a  pro- 
hibition was  sued,  and,  it  being  demurred  to,  the  defendant  prayed 
a  consultation.     Upon  this,  the  principal  question  was,  whether  the 
escape  was  such,  that  the  sheriff  was  suable  in  respect  of  it?  for,  if 
not,  the  bond  was  not  forfeited ;  and  if  the  bond  was  not  forfeited, 
then  it  was  said  to  be  clear  that  the  legacy  should  be  first  paid,  and 
to  this  purpose  it  was  argued,  that  by  the  Civil  law,  the  legatory  must 
enter  into  a  bond  te  make  restitution,  if  the  obligation  should  be 
afterwards  recovered,  so  there  was  no  inconvenience  to  any.     To 
which  the  whole  Court  agreed  ;  and  determined  that  it  was  no  plea 
unless  the  obligation  were  forfeited.     Coke  said,  "  the  difference  is, 
when  the  obligation  is  for  the  payment  of  a  less  sum  at  a  day  to  come, 
it  shall  be  a  good  plea  against  the  legatee  before  the  day,  for  it  is  a 
duty  maintenant,  which  is  in  the  condition  (as  9  E.  4.  12.)     But 
otherwise  it  is  where  a  statute  or  obligation  is  for  the  performance 
of  covenants,  or  to  do  a  collateral  thing.     There,  until  it  be  forfeited, 
it  is  not  any  plea  against  a  legatee ;  for  peradventure  it  shall  never 
be  forfeited,  and  may  lie,  in  perpetuum,  and  so  no  will  should  be 
performed."     The  majority  of  the  Judges  being  of  opinion,  that 
there  was  no  forfeiture,  a  consultation  was  awarded,  the  effect  of 
which,  as  far  as  it  regarded  the  question  before  his  Honour,  was  to 
leave  the  Spiritual  Court  to  proceed  according  to  their  own  estab- 
lished course,  viz.  to  compel  the  legatee  to  give  security  to  refund 
the  legacy,  in  case  of  the  executors  becoming  afterwards  liable  to 
be  sued  upon  the  bond.     The  Master  of  the  Rolls,  after  noticing 
Lord  Hardwicke's  opinion  in  Hawkins  v.  Day,(a)  that  an  unbroken 
covenant  rendered  it  unjustifiable  for  an  executor  to  pay  a  legacy, 
concluded  with  observing,  that,  from  the 'state  of  the  authorities,  it 
would  be  too  much  for  him  to  order  the  executor  to  transfer  and 
pay,  without  security  in  case  of  judgment  being  recovered  at  law 
against  him  for  any  future  breach  of  the  covenant ;  but  upon  such 

(y)  Harrison's  case  5  Rep.  28.  b.    Philip  v.  Echard,  Cro.  Jac.  8.  35.     Hav>- 
kmsv.Day,  Amb.  160.  162.  and  Ecles  v.  Lambert,  Aleyn.  38.  Styles  37.  54.  73. 
(z)  Cro.  Ehz.  466.  (a)  A^b.  160. 


SECT.  II.]  Of  the  Payment  of  Legacies.  583 

security  being  given  as  settled  by  the  Master,  his  Honour  directed 
the  funds  to  be  made  over  to  the  plaintiff. 

Security  is  only  required  from  a  legatee,  where  there  is  danger  of 
his  wasting  the  property,  and  his  inability  to  replace  it :  so  that,  if 
personal  chattels  be  devised  to  A.  for  life,  remainder  to  B.,  A.  will 
be  entitled  to  the  possession  of  the  articles,  upon  signing  and  deli- 
vering to  the  executor  an  inventory  of  them,  admitting  their  receipt, 
and  that  they  are  to  go  to  B.  after  his  A.'s  decease,  as  mentioned  in 
the  fourth  chapter. (6) 

Courts  of  equity  have  e'stablished  the  following  distinction  between 
legatees  and  then. representatives  in  relation  to  the  time  of  paying  the 
legacies,  viz.  that  if  a  legacy  be  given  to  A.  to  be  paid  at  twenty- 
one,  and  the  intermediate  interest  is  not  given,  and  A.  die  before 
that  period,  his  representative  must  wait  for  the  money  until  A.  if 
living,  would  have  attained  twenty-one  ;  but  if  the  legacy  be  limited 
over  to  B.  on  the  event  of  Jl.  dying  under  that  age,  and  A.  die  be- 
fore that  time,  B.  will  be  entitled  to  call  for-  it  immediately  upon 
the  death  of  A.  The  reasons  are  these :  the  representative  of  Jl. 
can  claim  no  otherwise  than  Jl.  could,  have  done,  if  living.  As  A. 
therefore  had  no  power  to-  call  for  his  legacy  before  he  attained 
twenty-one,  neither  can  his  representative  insist  upon  payment  of  it 
sooner.  But  in  the  oilier  case,  B.,  the  legatee  over,  does  not  derive 
his  title  through  A.  but  under  the  testator's"  will,  by  a  distinct  and 
substantive  gift,  upon  the  contingency  of  A.  dying  under  twenty- 
one ;  so  that  whenever  that  event  happens,  the  time  of  payment  not 
being  otherwise  postponed,  B.  becomes  immediately  entitled  to  re- 
ceive the  legacy.  The  following  cases  will  illustrate  the  above 
remarks  : 

In  Chester  v.  Painter,(c]  the  testator  gave  a  sum  of  money  to  A. 
B.  to  be  paid  at  twenty-one,  and  directed  a  part  of  the  intermediate 
interest  to  be  applied  for  his  benefit.  A.  B.  died  a  minor,  and  his 
executors  demanded  immediate  payment  of  the  legacy.  But  it  was 
decreed,  that  the  executors  should  wait  for  the  legacy  until  such 
time  as  the  legatee,  had  he  liyed,  would  have  attained  twenty-one, 
it  being  unreasonable  that  his  executors,  who  stood  in  his  place, 
should  be  in  a  better  situation  than  the  person  whom  they  repre- 
sented would  have  been,  if  he  had  been  in  existence. 

The  last  case  was  followed  by  that  of  Roden  v.  Smith,(d)  in  which 
the  testator  gave  to  his  grandchild  a  legacy  of  500/.  to  be  paid  at 
twenty-one,  with  an  allowance  of  III.  a  year  for  maintenance  till 
the  age  of  four  years,  and  16/.  per  annum  afterwards  to  twenty-one. 
The  legatee  died  under  age,  and  upon  the  claim  of  its  administrator 
to  immediate  payment,  notwithstanding  the  intestate  would,  if  living, 
have  been  then  under  twenty-one,  it  was  held  by  the  Court  of  Dele- 
gates that  the  administrator  claiming  under  the  infant  could  not  be 
in  a  better  condition  than  the  infant  himself,  and  therefore  he  was  not 
entitled  to  receive  the  legacy,  until  such  time  as  the  infant  would 
have  attained  twenty-one. 

But  the  principle  of  these  determinations  does  not  apply  to  cases 

(b)  Ante,  p.  231.     (c)  2  P.  Will.  336.  also  Crickett  v.  Dolby,  5  Ves.  15.  stated 
infra.  (<0  Amb,  588. 


584  Of  the  Payment  of  Legacies.  [Cn.  XIV. 

where  the  legacy  is  limited  over  to  a  person,  in  the  event  of  the  le- 
gatees dying  under  twenty-one. 

Thus  in  Laundy  \.  Williams,(d)  Mr.  Laundy  having  several  chil- 
dren, bequeathed  to  his  sons,  Samuel,  William,  and  Edward,  and  to 
his  daughter  Ann  Laundy,  legacies  to  be  p.aid  at  their  respective 
ages  of  twenty-one.  But  if  any  of  them  died  during  minority,  their 
legacies  were  to  be  paid  to  the  survivors.  Samuel  and  Ann  attained 
twenty-one,  and  received  their  portions.  William  died  very  young, 
and  the  two  former  claimed  immediate  payment  of  two*thirds  of  his 
legacy,  although  if  he  were  living  he  could  not  be  entitled  to  receive 
the  money,  as  being  under  twenty-one.  The  claim  was  "resisted}  on 
the  ground  that  the  legatees  over  were  not  entitled  to  receive  the 
money  sooner  than  the  original  legatee  would  have  been,  if  he  had 
been  alive ;  and  such  was  the  first  impression  of  Lord  King.  But 
upon  theMistinction  before  mentioned  between  the  representatives 
of  legatees  and  legatees  over,  being  stated  to  him  by  the  Solicitor 
General,  and  established  by  reference  to  authority  ,(e)  his  Lordship 
changed  his  opinion,  and  ordered  two-thirds  of  William's  legacy  to 
be  paid  to  the  plaintiffs. 

It  has  been  determined,  that  legacies  charged  upon  or  eventually 
payable  out  of  real  estate  are  to  be  considered  exceptions  to  this 
doctrine.  The  case  alluded, to  is  Feltham  v.  FeUham,(f]  in  which 
the  testator,  having  several  daughters,  charged  his  real  estates  with 
the  payment  of  their  portions,  viz.  1000L  to  each  daughter  at  her 
age  of  twenty-two,  or  m'arriage ;  but  if  any  of  them  died  before  her 
portion  became  payable,  her  share  was  to  go  to  the  survivors.  One 
of  the  daughters  having  died  before  twenty-two  or  marriage,  and 
another  of  them  having  attained  that  age,  it  was  insisted,  that  as 
any  particular  time  was  not  appointed  for  paying  the  portion  which 
had  accrued  by  survivorship  it  ought  to  be  paid  immediately.  But 
it  was  decided  by  Lords  Commissioners  Jekyll  and  Gilbert,  that  the 
accruing  or  additional  portion  was  not- payable  before  such  time  as 
the  daughter  to  whom  it  was  originally  given,  would  have  attained 
twentyrtwo;  and.  for  the  following  reasons;  that  a  contrary  determi- 
nation might  be  injurious  to  the  heir,  as  also  against  the  intention 
of  the  testator,  who  might  have  computed  within^  what  period  the 
portions  could  be  raised  with,  the  least  inconvenience  to  his  suc- 
cessor. 

Another  exception  to  this  rule  must  be  made,  in  instances  where 
none  of  the  legatees  take  vested  interests,  but  the  original  legacies 
are  made  to  depend  upon  the  happening  of  precedent  contingent 
events,  with  a  limitation  over  to  survivors  generally,  upon  the  death 
of  any  of  the  original  legatees  before  the  contingencies  take  place. 
For  in  those  instances  it  is  presumed  to  have  been  the  testator's  in- 
tention to  subject  the  accruing  shares  or  legacies  to  the  same  con- 
tingencies as  the  original.  So  that  if  legacies  be  given  to  two  or 
more  persons  upon  the  same  contingency,  with  benefit  of  survivor- 
ship in  event  of  the  death  of  any  of  them  before  the  time  of  pay- 
ment, the  surviving  legatees  cannot  demand  payment  of  the  lega- 
cies or  shares  accruing  to  them  by  survivorship  sooner  than  they 

(rf)  2  P. .  Will.  478.     (0  Pafiworth  v.  Moore,  2  Vern.  283.     (/)  2  P.  Will.  271. 


SECT.  II.]  Of  the  Payment  of  Legacies.  585 

would  be  entitled  to  call  for  the  discharge  of  their  own  original 
shares. 

This  was  so  decided  in  the  case  of  Moore  v.  Godfrey.(g]  Sir 
W.  Coventry  bequeathed  150CJ.  to  his  .three  co-heiresses  to  be  paid 
at  their  respective  .marriages,  as  well  principal  as  interest;  and  if 
any  of  them  died  unmarried  her  legacy  was.  to  go  to  the  survivors. 
The  plaintiff  (one  of  the  daughters)  married,-  and  received  her  share. 
The  second  died  unmarried.  And  whether  the  500Z.  which  accrued 
to  the  plaintiff  and  defendant  upon  the  death  of  the  unmarried  sister, 
was  subject  to'the  condition  of  marrying,  was  the  question,  as  the 
defendant  remained  single;  And  Lord  Cowper,  C.  was  of  opinion, 
that  the  condition  extended  to  the  whole,  as  wejl  to  what  accrued 
by  survivorship 'as  to  the  original  devise. 

An  exception  must  be  also  noticed  to  the  riile^  in  regard  to  the 
representatives  of  legatees  waiting  for  payment  of  the  legacies,  until 
the  times  arrive  when  the  legatees  themselves,  if  living,  would  be 
entitled  to  receive  the  money.  For  where  legacies  are  made  pay- 
able at  twenty-one,  if  interest  be  given  during  minority,  and  the 
legatees  die  under  age,  then,  since  interest  is  considered  a  recom- 
pence  for  the  delay  in  payment  of  the  principal,  which  is  merely 
postponed  on  account  of  trip  ages  of -the  legatees,  their  executors 
or  administrators  will  not  be  obliged  to  wait,  for  the  money,  until 
the  legatees  would  have  attained  twenty-one. 

In  Cloberry  v.  Lampen,(h)  A.  bequeathed'  to  B.  500/.  when  B. 
attained  the  age  of  twenty-one  or  married,  which  ever  first  happen- 
ed, to  be  paid  with  interest.  B.  survived  Jl.  but  died  during  in- 
fancy, and  unmarried.  And  immediate  payment  of  the  legacy  was 
.ordered  to  the  personal  representatives  of  B.  because  interest  was 
given. 

This  principle  was  assented  to  by  Lord  Thurlow  in  Green  v. 
Pigot,(i)  who  thus  states  it;  "  If  a  legacy  be  payable  at  twenty- 
one,  and  the  child  die,  his  executor  cannot  claim  till  the  time  when 
the  child  would  have  arrived  at  twenty-one,  if  the  legacy  does  not 
bear  interest ;  but  if  it  be  with  interest  he  may  claim  immediately. 
If  it  bear  a  less  interest  than  the  utmost  use,  the  executor  has  a 
right  to  the  money,  paying  the  modified  interest"  And  in 

Crickett  v.  Dolby, (k)  Lord  Mvanley  expressed  himself  to  the  fol- 
lowing effect :  "Where  a  legacy  is  ordered  to  be  paid  at  the  age  of 
twenty-one,  and  the  legatee  dies  before  the  time,  shall  the  executor 
wait  till  the  legatee  would  have  been  twenty-one,  or  have  it  imme- 
diately ?  This  depends  upon  the  question,  whether  interest  be  paya- 
ble or  not?  If  interest  be  given,  the  executor  shall  have  the  legacy 
immediately,  otherwise  he  must  wait*  It  is  admitted  that  if  the  lega- 
tee had  died,  her  executor  could  not  have  the  legacy  until  she  (had 
she  lived)  would  have  attained  twenty-one.  There. never  could  have 
been  such  an  absurdity  as  the  notion,  that  you  must  wait  till  that 
time,  and  then  have  the  subject  with  the  interest." 

Supposing  then  with  his  Lordship,  that  a  legacy  to  B.  payable  at 
the  age  of  thirty,  with  a  gift  of  interest  in  the  meantime,  will  entitle 
B.  to  immediate  payment  of  the  principal,  yet,  if  instead  of  interest 

(g)  2  Vem  620.  ed.  by  Raithby.  (A)  2  Freem.  24. 

(0  1  Bro.  C.  C.  105.  stated  infra.  (k)  3  Ves.  13. 


586  Of  the  Payment  of  Legacies.  [Cn.  XIV. 

a  mere  discretionary  power  be  given  to  the  executors  to  advance  the 
money  at  an  earlier  period,  it  will  not  accelerate  the  time  of  pay- 
ment, unless  the  discretion  be  exercised,  either  by  the  executors  or 
a  court  of  equity.  This  will  be  more  clearly  understood  from  the  fol- 
lowing case  :  . .  • 

In  Lewis  v.  Lewis,(l)  3333Z.  three  per  cent  annuities  were  be- 
queathed to  trustees,  to  apply  the  .dividends  towards  the  mainte- 
nance and  education  of  the  plaintiff  until  he  attained  twenty-one, 
and  to  pay  him  from  that  time  the  whole  of  the  dividends  for  life, 
with  an  authority  to  the  trustees  to  apply  600 1.  (part  of  the  annui- 
ties) at  any  tune  before  the  plaintiff  attained  twenty-six,  for  his  ad- 
vancement in  the  world  or  other  his  occasions  as  they  (the  trustees) 
or  the  survivor  of  them  should  think  proper.  And  the  testator  gave 
the  600Z.  to  the  plaintiff  at  his  age  of  twenty-six.  The  plaintiff 
having  attained  twenty-one,  claimed  immediate  payment  of  the  6001. 
But  Lord  Thurlow  determined  against  the  demand,  observing,  that 
the  case  was  not  one  of  a  gift  by  the  testator,  but  a  power  to 
others  to  give,  which  seemed  be  confined  to  the  answering  of  some 
particular  purposes.  That  the  proper  question  was,  whether  the 
present  circumstances  and  situation  of  the  plaintiff  were  such  as  to 
meet  the  view  of  the  testator  in  giving  the  legacy1?  To  ascertain 
which  fact  it  was  referred  to  a  Master  to  inquire,  whether  the  situa- 
tion of  the  plaintiff  required  any  and  what  part  of  the  money  to  be 
advanced  before  his*age  of  twenty-six. 

Yet  a  variety  of  cases  may  occur  of  legacies  given  to  or  in  trust 
for  individuals  absolutely  and  beneficially,  •  but  with  a  direction  for 
the  application  or  enjoyment  of  the  money  in  a  particular  manner; 
as  for  example,  to  purchase  annuities  for  the  legatees,  or  to  place 
them  out  apprentices  or  to  enable  them  to  take  holy  orders ;  in 
which  the  legatees  will  be  entitled  to  receive  the  capitals  immedi- 
ately upon  the  death  of  the  testator,  or  at  the  expiration  of  a  year 
next  afterwards,  regardless  of  the  particular  modes  directed  for  the 
enjoyment  or  application  of  the  property,  as  has.  been  shown  in  the 
seventh  section  of  the  tenth  chapter. (m) 

When  there  is  a  substitution  of  legacies,  or  an  addition  to  them, 
and  no  times  are  appointed  for  payment  of  the  substituted  or  ad- 
ditional bequests,  nor  any  funds  assigned'  out  of  which  they  are  to 
be  satisfied,  it  appears  to  be  settled  that  those  legacies  are  to  be 
paid  out  of  the  same  property  at  the  same  periods,  and  upon  the 
same  terms  as  the  legacies,  in  lieu  of  or  in  addition  to  which  they  are 
given.  In  illustration,  if  A.  bequeath  to  B.  1000Z.  charged  upon 
lands,  and  payable  at  twenty-one  or  marriage,  and  he  afterwards  by 
a  codicil  gives  to  B.  the  further  sum  of  200J.  in  addition  to  what  he 
gave  B.  by  his  will ;  or  suppose  him  to  revoke  the  first  legacy,  and 
to  substitute  a  less  in  its  place,  without  directing  the  time  when,  or 
the  funds  out  of  which  the  additional  or  substituted  legacies  are  to 
be  discharged ;  those  latter  legacies  will  be  payable  at  the  same 
periods  and  out  of  the  same  property  as  the  legacy  of  1000Z.  first 
given. 

In  Leacroft  v.  Maynard,(n]  the  testator  directed  his  legacies  to 

(/)  1  Cox,  162.  and  see  Robinson  v.  Cleator,  15  Ves.  526. 

(w)  Vid.  ante,  from  p.  425  to  431.     (n)  1  Ves.  jun.  279.     3  Bro.  C.  C.  233.  S.  C. 


SECT.  II.3          Of  the  Payment  of  Legacies.  587 

be  paid  out  of  his  real  estate.  Some  of  them  were  given  to  charities 
which  were  ineffectual  by  the  operation  of  the  statute  of  Mortmain; 
but  the  testator,  by  a  codicil,  revoked  those  bequests,  as  also  a  lega- 
cy given  to  one  of  his  trustees,  which  he  bequeathed  to  another, 
whom  he  substituted  in  his  place ;  and  he  gave  smaller  legacies  to 
the  charities  "  instead"  of  those  mentioned  in  the  will.  It  was  con- 
tended for  the  charities,  that,  the,-gift  by  codicil  of  the  legacies  being 
general,  they  were  payable  out  of  the  personalty  ;  and  that  such  was 
the  testator's  intention  might  be  presumed  from  the  supposition  of 
his  subsequent  information -of  the  invalidity  of  the  legacies  he  had 
given  in  his  will,  which  was  the  reason  of  their  being  revoked,  and 
for  the  gift  pf  smaller,  by  the  codicil  generally.  But  Lord  Thurlow 
was  of  opinion,  that  the  codicil  -only  meant  to  alter  the  quantum  of 
the  legacies  in  some  cases, .and  the  objects  of  them  in  others;  but 
not  the  fund  out  of  which  they  were  directed  to  be  paid  by  the  will; 
and  .that  therefore  the  charity-legacies  were,  void,  as  payable  out  of 
real  estate. (o) 

So  in  Crowder  v.  Clowes,(p)  a  term  of  years  was  created  by  the 
testator  for  the  payment  of  his  debts  arid  legacies,  and  he  gave  to 
his  niece  1000Z.  payable  at  his  death  in  the  event  of  her  being  then 
married ;  but  if  not,  she  was  to  receive  the  interest  for  life,  or  until 
her  marriage ;  but,  if  she  died  unmarried,  the  legacy  was  to  lapse 
for  the  benefit  of  the  person  entitled  to  his  real  property.  By  a  co- 
dicil the  testator  gave  his  niece  2001.  in  addition  to  what  he  had 
given  to  her  by  the  will.  And  the  Master  of  the  Rolls  determined, 
upon  the  authority  of  the  last  case,  that  the  additional  legacy  should 
be. paid  out  of  the  same  fund,  and  be  liable  lo  the  same  conditions, 
as  the  original  bequest  of  lOOOil. 

By  the  marriage  settlement  in  Long  v.  Long,(q]  the  portions  pro- 
vided for  younger  children  were  made  payable  at  twenty-one  or 
marriage,  with  immediate  interest  for  maintenance  at  2,1.  per  cent. 
The  father  by  will  increased  the  fortune  of  each  child,  directing  the 
additional  sums  to  be  paid  at  the  same  times  and  ages  as  the  portions 
by  settlement,  but  said  nothing  as  to  interest*  And  it  was  determin- 
ed, that  the  same  rate  of  interest  was  payable  on  the  additional 
portions,  as  upon  the  original. 

Consistently  with  these  authorities,  Sir  W.  Grant  decided  the  re- 
cent case  of  Cooper  v.  Day,(r]  in  which  the  testator  gave  to  his 
widow  3001.  payable  within  three  months  from  his  death,  and  free 
from  legacy  duty.  He  also  gave  40001.  to  trustees,  payable  to  them 
within  the  same  period,  free,  from  legacy  duty,  in  trust  for  his  two 
daughters,  to  be  paid  at  twenty-one,  with  intermediate  interest  for 
their  maintenance.  By  a  codicil,  the  testator  bequeathed  to  his 
wife,  an  additional  sum  of  200/.  free  from  legacy  duty.  He  also 
revoked  the  legacy  of  40001.  and  in  subsitution  gave  in  trust  for  his 
daughters  50QOZ.  "  upon  the  trusts,  and  to  and  for  the  same  intents 
and  purpose,  and  under  and  subject  to  the  same  powers,  provisoes, 
and  limitations,  as  expressed  in  his  will  concerning  the  legacy  of 
4000Z."  By  a  second  codicil,  the  testator  revoked  the  gift  of  5000J. 

fo)  See  also  Chatteris  v.  Young,  6  Mad  31. 
•  \ft)  2  Ves.  juji.  449.  and  see  Wordsworth  v.  Younger,  3  Ves.  73. 
(?)  3  Ves.  286.  in  a  note.  (r)  3  Mer.  154.  infra. 


588  Of  the  Payment  of  Legacies  [Cn.  XIV. 

and  gave  in  its  place  6000Z.  to  the  same  trustrees,  upon  the  trusts, 
&c.;  following  the  words  in  the  first  codicil.  The  only  question 
was,  whether  the  legacy  of  6000Z.  was  to  be  paid  free  of  the  legacy 
duty  9  And  Sir  W.  Grant  declared,  upon. the  authority  of  the  be- 
fore stated  cases  of  Leacroft  v.  Maynard  and  Crowder  v.  Clowes, 
that  the  substituted  legacy  of  6000J.  was  to  be  taken  as  exempted 
from  the  legacy  duty,  in  like  manner  with  the  original  legacy,  in  the 
place  of  which  it  was  given. (s) 

When  the  assets  of  testators  are  placed  under  the  administration 
of  a  Court  of  Equity,  it  will  not,  in  general,  order  any  part  of  them 
to  be  applied  in  satisfaction  of  one  or  more  legacies,  until  it  ap- 
pears, from  a  Master's  report,  that  the  debts,  &c.  have  been  paid, 
and  there  is  a  sufficient  residue  to  discharge  the  legacies.  Yet  this 
practice  is  not  without  exceptions.  When  justice  and  convenience 
require  a  departure  from  the  general  rule,  they  will  prevail.  Sup- 
pose then  a  case  to  arise,  where  the  assets  are  admitted  to  be  amply 
sufficient  to  satisfy  all  demands  upon  them,  it  seems  that  the  Court, 
with  the  consent  of  all  parties  interested  in  the  application,  will  di- 
rect the  immediate  payment  of  the  whole  or  proportions  of  the  lega- 
cies, as  the  urgency  of  the  case  and  circumstances  may  require. 

In  Pearce  v.  Baron,(t)  application  was  made  to  the  Court  for  pay- 
ment of  part  of  a  legacy,  without  prejudice  to  the  question  out  of 
what  fund.it  was  to  be  discharged.  The  bill  was  filed  by  trustees  to 
have  the  accounts  taken,  &c.  and  the  application  was  made  upon 
the  ground  of  there  being  a  clear  surplus,  and  .with  the  consent  of 
all  competent  parties.  A  case  of  Coffin  v.  Cooper(v)  was  cited,  and 
acknowledged  by  the  Court  to  be  in  point.  Lord  Erskine,  C.  granted 
the  application,  observing,  that  such  an  order  can  never  be  made, 
except  where  there  is  a  clear  obvious  surplus,  admitted  by  others 
who  are  interested  to  object;  when  it  is  a. measuring  cast,  that  will 
not  do.  The  principle,  upon  which  the  Court  acts  is,  that  the  per- 
sons so  interested  to  object,  will  not  assent,  if  it  involved. them  in 
all  the  responsibility,  Vhich  would  arise  where  creditors  are  out- 
standing, and  the  fund  is  scanty. 

B. — Bequests  of  annuities. 

With  respect  to  the  period,  when  the  first  payment  of  an  annuity 
is  to  be  made,  when  the  time  is  not  appointed  by  the  testator,  the 
following  distinction  is  presumed  to  exist.  If  the  bequest  be  merely 
in  the  form  of  an  annuity,  as  a  gift  to  B.  "  of  an  annuity  of  100/. 
for  life,"  the  first  payment  will  be  due  at  the  end  of  the  year  after 
the  testator's  death.  But  if  the  disposition  be  of  a  sum  of  money, 
and  the  interest  of  it  is  given  as  an  annuity  to  B.  for  life,  the  first 
payment  will  not  accrue  before  the  expiration  of  the  second  year 
after  the  death  of  the  testator.  In  the  former  instance,  the  testator 
is  supposed  to  mean  that  the  annuity  should  commence  from  his  de- 
cease. In  the  latter,  the  annuity  being  given  in  the  form  of  interest, 
upon  a  gross  sum  of  money,  to  Jt>e  taken  out  of  the  assets  as  any 
other  legacy  (and  which  we  have  seen,  does  not  begin  to  carry  in- 
terest until  the  end  of  the  year  after  his  decease,)  cannot  be  payable 
sooner  than  the  fund  produces  the  means  for  that  purpose.  This  dis- 

(«)  Chatterisv,  Young,  6  Mad.  30.  (/)  12  Ves.  459. 

(T>)  In  chancery  26  March  1806,  12  Ves.  460. 


SECT.  II.]  Of  the  Payment  of  Legacies.  589 

tinctiori  was  stated  by  Lord  Eldon  in  the  case  below  referred  to,  and 
seems  to  be  founded  upon  principle  ;  yet  it  does  not  appear  to  have 
been  sanctioned  by  express  decision.  (w) 

But  questions  of  this  kind  can  only  arise,  where  testators  omit  to 
settle  the  period  when-  the  first  payments  of  annuities  are  to  be 
made.  If  then,-  a  testator  direct  payment  of  an  annuity  (however 
given,)  to  be  made  at  the  expiration  of  the  first  quarter,  or  half  year, 
after  his  death/it  will  be"  due  at  that  time,  although  not  in  fact  pay- 
able by  the  executor  until  the  end  of  the  year.(x) 

C.  —  It  may  here  be  proper  to  add  a  few  observations  on  the  sub- 
ject of  apportionment. 

When  an  annuity,  or  the  dividends  of  stock,  are  given  to  one  for 
life,  with  remainder  over  ;  as  between  the  tenant  for  life  and  persons 
in  remainder,  apportionment  is  not  in  general  allowed. 

Thus,  an  annuity  or  the  dividends  of  stock,  being  in  the  nature  of 
an  annuity,  was  given  to  one  for  life,  payable  half  yearly  ;  the  first 
payment  to  be  "made  on  the  second  quarter-day  which  should  hap- 
pen after  the  death  of  the  testator  ;  .the  testator  died  on  the  19th  of 
November  1756  ;  and  the  daughter  on  the  19th  of  January  1803  : 
her  representative  claimed  the  dividends  due  on  the  5th  of  January 
1803  :  and  it  Was.  held  by  Sir  William  Grant,  that  the  daughter  was 
only  entitled  up  to  Michaelmas,  being  the  day  of  the  last  half  yearly 
payment  previous  to  her  death.  (y) 

The  rule  is  otherwise,  where  the  annuity  is  given  by  a  parent  to  a 
child,  in  the  nature  of  maintenance. 

Thus  ;  a  mother  directed  her  daughter  Martha  to  pay  to  the  tes- 
tatrix's daughter  Mary,  301.  yearly,  while  she  continued  sole,  by 
151  each  May  day  and  Ml  Saints  day.  Mary  married  before  a  half 
year's  payment  became  due  ;  but  Lord  Hardwicke  directed  the  an- 
nuity to  be  apportioned,  and  paid  up  to  the  day  of  the  marriage.  (z) 
His  Lordship  considered  the  principal  case  as  falling  withm  the 
reason  of  Hay  V.  Palmer.(a] 

We  shall  next  consider, 

5,  To  whom  legacies  are  to  be  paid. 

It  has  been  observed,  that  when  the  fund-is  in  Court,  and  the  lega- 
tee entitled  to  receive  it,  the  Court  of  Chancery  will  order  payment 
to  a  person,  lawfully  authorized  by  hirn.(&) 

A.  —  But  when  the  legatee  is  an  infant,  and  ,he  would  be  entitled 
to  receive  his  legacy,  if  he  were  of  age,  payment  to  him,  or  to  his 
father  on  his  account,  cannot  be  supported.  The  child,  upon  at- 
taining twenty-one,  may  recover  it  from  the  executor.  This  how- 
ever was  not  always  so  ;'  for  it  appears  from  the  case  ofHoll&wayv. 
Collins,(c)  that  in  early  times  payment  to  the  father  of  his  infant 
child's  legacy  was  good  ;  but  since  the  case  of  Dagley  v.  Tolferry, 
reported  in  the  book  referred  to  in  the  last  note,  and  after  stated,  it 
has  become  the  settled  rule  of  -Courts  of  Equity,  that  such  a  pay- 
ment is  illegal.  If,  indeed,  the  child  were  of  age,  payment  to  the 

(u}  See  Lord  Eldoh's  observations  in  Gibson  v.  Bott,  7  Ves.  96.  and  ibid.  97. 
stated  infra,  Chap:  XX.  s.  12. 

(:r)  6*orer  v.  Prestage,  3  Mad.  167-8.     Houghton  v.  Franklin,  1  Sim.  &  btu. 
90.         (y)  Franks  v.  JVoble,  12  Ves.  484         (z)  Reynish.  v.  Martin,  3  Atk.  3JO. 
(a)  2  P.  Will.  501.     2  Eq.  Ca.  Abr.  83.  pi.  3.  646.  pi.  22.  S.  C. 
(6)  Ante,  p.  580.  (c)  1  Eq.  Ca.  Abr.  300. 

VOL.  i.  4  F 


390. 


590  Of  the  Payment  of  Legacies.  [Cn.  XIV. 

father  would  not  be  good,  unless  made  with  the  child's  consent,  or 
it  were  afterwards  confirmed  by  him. 

It  may  therefore  be  laid  down  as  a  general  rule,  that  where  a  lega- 
cy is  given  to  an  infant,  generally,  an  executor  cannot,  with  safety, 
pay  it  to  the  child,  or  to  another  person,  for  his  benefit.  This  rule 
was  carried  to  a  great  length  in  the  following  case : 

In  Dagley  v.  Tolferry,(d)  A.  having  a  sister,  who  had  four  infant 
children,  bequeathed  1001.  a  piece  to  those  children,  mentioning  no 
time  of  payment ;  and:  he  appointed,  the  defendant  executor.  It 
was  in  proof  that  the  testator,  on  his  death^bed,  directed  his  ex- 
ecutor to  pay  the  legacies  to  the  father  of  the  infants,  to  improve 
the  money  for  their  benefit..  In  consequence  of  that  direction,  pay- 
ment was  made  to  the  father ;  when  the  youngest  child  came  of 
age,  accounts  were 'settled  between  him  .and  his  father,  on  which 
the  latter  was  indebted  to  his  son-  in  200Z.  including  the  legacy  of 
100Z.  and  for  which  balance  the  son  accepted  his  father  as  his 
debtor;  a  circumstance  urged  by  the  executor,  as  a  confirmation 
of  his  payment  of  the  legacy  to  the  father.  The -son  acquiesced 
in  the  payment  for  fifteen  years;  and  upon  his  bankruptcy,  his  as- 
signees claimed  the  legacy  from  the  executor,  and  obtained  a  decree 
at  the  Rolls  from  Sir  Jokyi  Trevor  for-  payment  of  it,  on  the  ground 
that  payment  of  the  legacy  to  the  father  and  guardian  was  illegal. 
And  Lord  Cowper,  C.  (to  whom  the  executor  appealed)  was  of  the 
same  opinion,  and  confirmed  the  decree;  saying,  •'"  that  if  it  were, 
reversed,  it  might  encourage  payrnents  to  parents  and  guaTdians 
hi  wrong  of  infant  children  ;"  but  the  case  being  considered  a  hard 
one,  the  deposit  was  ordered  to  be  divided.  '•. 

That  parol  evidence  of  the  testator's  direction  to  his  executor  to 
pay  the  legacies  to  the  father  was  admitted  by  the  Court,  is  singu- 
lar, as  the  effect  of  it  was  to  contradict  the  will  that  expressly  gave 
the  legacies  to  the  children,  which  necessarily  imports  payment  to 
them.  The  propriety  of  its  admission  was  reasonably  questioned 
by  Lord  Alvaiiley,  in  Cooper  v.  Thornton^  He  consulted  the 
Registrar's  boo'k,  and  observed,  it  appeared  from  the  book  that  the 
evidence  was  read,  but  doubted  whether  it  ought  to  have  been  re- 
ceived. "  It  would  be  dangerous  (said  his  Lordship)  to  admit  evi- 
dence, that  a  legacy,  given  to  owe  person,  was  ordered,  to  be  paid 
to  another.(e} 

There  is  another  sigularity  attending  the  last  case,  viz.  that 
acquiescence  by  the.  child  for  fifteen  years  after  payment  of  the  legacy 
to  his  father,  should  not.be  permitted  to  constitute  a  confirmation 
of  it.  But  the  principle  arises  out  of  the  relation  between  parent 
and  child,  i.  e.  filial  duty  to  a  father.  Lord  Mvanley,  in  the  case 
last  referred  to,  expressed  himself  on  this  subject  to  the  following 
effect :  "  Although  the  money  was  directed  to  be,  and  was,  paid  to 
the  father,  and  the  son  acquiesced  a  great  length  of  time,  still  it 
was  competent  to  him  or  his  representatives  to  demand  it ;  because 
a  contrary  determination  would  encourage  such  payments,  and  a 
son  must  acquiesce,  or  pursue  his  father;  or,  which  is  the  same 
thing,  by  commencing  a  suit  against  the  executor,  occasion  him  to 

(rf)  1  P.  Will.  285.  1  Eq.  Ca.  Abr.  300.  5.  C.  Reg.  lib.  anno  1714.  fo.  414. 
anno  1715.  fo.  40.  (e)  3  Bra  C.  C.  97.  edit,  by  Belt,  infra. 


SECT.  II.]         Of  the  Payment  of  Legacies,  591 

pursue  the  father.  I  take  that  to- have  been  the  ground,  on  which 
Sir  John  Tr#vor  and  Lord  Cowper  went  in  Dagley  v.  Toljerry ; 
and  that  if  the  Legatee  had  not  stood  in  such  relation  to  the  person 
to  whom  the  legacy  was  paid,  the  bill  would  have  been  dismissed." 

The  next -case  being 'compromised,  merely  affords  Lord  Hard- 
.wicke's  sentiments  in  regard  to  the  rule.  And  although  his  Lord- 
ship's opinion  inclined  .in  favour  of  the  validity  of  the  payments 
made  to  the  infant  legatees,  yet,  upon  reflection,  he  declined  to 
pronounce*  a  decree  in  conformity  with  that  opinion,  in  opposition 
to  Lord  Cowper' s  judgment  in  Dagley  v.  Tolferry.  Besides,  in  the 
case  before  Lord  Hdrdivicke,  the  executor  was  misled  by  the  testa- 
tor's own  directions  in  .his  will  to' pay  the  legacies  within  a  certain 
time,  a  circumstance  observed  by  Lord  Alvanley  to  be  entitled,  to 
consideration  in  the  judgment//) 

The  case  alluded  to  in  Philips  v.  Paget,  of  which  we  have  not 
any  account  except  in  the  report. of:  Mr.'  *@tkyns..(g]  There  the 
testatrix  gave  to  each  ^of  .the  three  children  of  Mr.  Philips  100Z. 
and  appointed  the  defendant  executor,  leaving  him  the  bulk  of  her 
estate,  provided  he  paid  the  three  legacies  within,  a  year 'after  her 
death,  pursuant  to  her  will.  In  performance  of  the  condition  the 
defendant  paid  the  legacies  into  the  Hands  of  the  infants,  within  the 
time,  the  eldest  of  them  being  then  sixteen,  the  second  fourteen, 
and  the  youngest  nine  years  old,  upon,  a  bill  filed  by  the  children 
.against  the  executor  for  payment  of  their !  legacies,  -Lord  Hardwicke 
asked  the  executor's  counsel  if  they  knevy  any  instance  of  payment 
of  so  large  a  sum  of  money  into  the  hands  of  minors,  ever  having 
been  allowed  by  the  Court.  He  then  added,  "  but  in  this  case,  as 
the  payment  by  the  executor  to  the  children  themselves  is  so  fully 
proved,  and  their  losing  the  benefit  of  it  is  owing  to  the  negligence 
and  insolvency  of  the  father,  I  will  not  strain  the  rules  of  the  Court 
to  make  an  executor  pay  it  over  again,  especially  as  he  made  the 
payment  to  save  a  forfeiture,  -it  being  an  express  condition  of  his 
taking  under  the  will,  that  he  shduld  discharge  the  legacies  within 
a  year  after  tine  testatrix's  death."  Notwithstanding  the  specialty, 
his  Lordship  on  the  following  clay  observed,  that  upon  looking  into 
the  cases  he  found  the  present  a  very  doubtful  point,  and  unless  the 
defendant  would  agree  to  give  the  plaintiff  something,  he  would 
not  determine  it  without  taking  time  for  consideration  ;  -a  recom- 
mendation which  produced  a  compromise,  and  was  not  a  little  signi- 
ficant to  the  executor  of  what  would  have  been  the  ultimate  decision 
of  the  Court. 

Such  being  the  rule  of  law  in  regard  to  the  in  validity 'of  payments 
made  to  or  for  infants,  of  legacies  given  directly  to  them;  executors 
who  were  desirous  of  being  discharged  from  their  office,  after  having 
performed  all  their  other  duties,  were  under  the  necessity  of  pro- 
curing bills  to  be  filed  against  thern  by  the  legatees  to  enable  them 
to  dispose  of  those  particular  legacies  under  the  direction  and  in- 
demnity of  a  court  of  equity.  -But.  opportunity  of  avoiding  this 
inconvenience  and  expense  appears  to  have  been  provided  by  stat. 
36  Geo.  3.  c.  52.  s.  31,  by  which  it  is  declared,  that  an  executor 
may  pay  the  legacy  of  an  infant  into  the  Court  of  Chancery,  after 
(/)  3  Bro.  C.  C.  98.  (g)  2  Atk.  80. 


592  Of  the  Payment  of  Legacies.  [Cn.  XIV. 

deducting  the  duty,  without  suit,  and  when  the  legatee  attains  the 
age  of  twenty-one  he  may  petition  for  it.  It  seems  therefore  that 
in  instances  where  this  summary  mode  can  be  adopted,  if  a  legatee 
unnecessarily  commence  a  suit  to  have  his  legacy  secured,  the.-costo, 
as  heretofore,  will  not  be  allowed  out  of  the  testator's  general  assets, 
to  the  prejudice  of  the  residuary  legatee. 

In  Whopham  v.  Wingfield,(h]  a  legacy.was  given  to  an  infant 
who,  with  her  husband,  when  she  was  within  a  few  months  of  twenty- 
one,  instituted  a  suit  to  have  the  money  secured.  Assets  were 
admitted,  and  the  usual  decree  made  that  the  legacy  should  be  paid 
into  Court,  with  costs  out  of  the  general  estate.  The  residuary  lega- 
tee complained  of  the  hardship  to  fix  the  costs  upon  him,  -when  if 
the  plaintiffs  had  waited  for  a  few  months,  they  might  have  received 
the  legacy  without  a  bill.  And  Lord  Alvanley  said,  that  in  such  a 
case  he  would  not  in  future  give  the-  costs,  for  since  the  late.  Legacy 
Act,  the  executor  had  nothing  to  do  but  to  pay  the  money  into 
Court,  and  then  he  had  done,  and  the.  infant  when  of  age  might 
petition  for  it. 

It  is  a  consequence  from  the  rule  we  have  been  considering',  that 
testators  ought  not  only  to  bequeath  to  trustees  legacies  intended 
for  minors,  to  whom  themoney  may  be  safely  paid,  but  to  grant  fixed 
allowances  for  their  support  and  education  during  infancy,  and  to 
give  authority  to  the  trustees  to  apply  certain  proportions  of  the 
capitals  for  the  preferment  of  the  minors  in  the  world,  when  such 
objects  are  intended  to  be  provided  for.  Because  since,  as  we  have 
seen,  an  executor  cannot,  without  personal  risk,  pay  the  whole  or 
any  part  of  a  legacy  directly  bequeathed  to  an  infant,  either  to  the 
child  or  to  any  person  for  his  use ;  neither  can  he  with  safety  apply 
any  part  of 'the  interest  or  principal  for  the  minor's  maintenance  or 
preferment  without  the  direction  of  a  court  of  equity,  unless  he  be 
expressly  authorized  to  do  so,  and  the  proportions  are  ascertained 
by  the  testator.  Indeed,  if  maintenance  be  directed  generally  with- 
out saying  how  much  the  uncertainty  of  amount  will  render  an  ap- 
plication to  a  court  of  equity  necessary.  But  as  executors  or  trus- 
tees are  sometimes  desirous  of  undertaking  personal  responsibility 
to  save  expense  to  the  estate,  it  may  be  useful  to  observe  that  they 
can  only  be  justified  in  applying  to  maintenance  part  of  the  interest 
of  the  fund,  and  by  no  means  any  portion  of  the  principal  without 
the  authority  of  the  testator.  For  the  Court  has  never  permitted 
executors  or  trustees  to  break  in  upon  capital  of  their  own  accord. 
It  has  never,  as  is  presumed,  sanctioned  such  conduct  in  them. 
Rarely  has  the  Court  applied  part  of  capital  for  maintenance,  though 
frequently  for  the  advancement  of  the  child.  But  whatever  the  Court 
might  do  under  particular  circumstances,  it  will  not  in  this  instance 
sanction  an  executor  or  trustee  in  doing  the  same.  The  principle 
is  this :  "It  is  better  that  an  individual  should  suffer  a  hardship  than 
that  the  general  rule  should  be  infringed  in  a  point  which  would 
endanger  the  interests  of  all  children. "(i)  Thus  far  as  to  capital. 
But  when  the  question  arises  upon  application  by  an  executor  or 
trustee  of  part  of  the  interest,  for  the  support  of  an  infant-legatee, 
without  the  authority  of  the  testator,  it  would  seem  that,  if  he  did 

(A)  4  Ves.  630,  (i)  6  Ves.  474. 


SECT.  II.]  Of  the  Payment  of  Legacies.  593 

no  more  than  what  the  Court  would  have  directed  if  it  had  been  re- 
sorted to  in  the  first  instance,  his  act  would  be  supported.  Lord 
Alvanley  expressed  himself  on  this  subject  to  the  following  effect: 
"The  principle  has  been  established  since  Andrews  v.  Partington,(k) 
that  if  an  executor  do  without  application  what  the  Court  would 
have  approved,  he  shall  not  be  called  to  account,  and  forced  to 
undo  that  merely  because  it  was  done  without  application."  After 
these  preliminary  remarks,  we  shall  proceed  to  consider  the  cases. 

In  Davies  v.  Austen, (I)  a  legacy  of  50CZ.  was  directed  to  be  paid 
to  W..  Green  at  the  age  of  twenty-one,  with  legal  interest  in  the  mean 
time.  The  legatee  had  no  other  immediate  provision  but  the  above 
sum,  and  the  following  expenditure  was  made  for  him  during  his 
minority  ;  while  his  father  was  living,  (interest  was  paid  to  him  for 
the  maintenance  of  his  son,  the  father  not  being  of  ability  to  discharge 
that  obligation.  After  his  death,  the  payment  was  continued  to  the 
mother  of  the  legatee  until  her  second  marriage,  and  from  that  time 
to  Mr.  Jones,  her  second  husband.  Those  payments  were  not  dis- 
puted. But  Mr.  Jones,  after  placing  the  legatee  in  the  service  of  an 
English  sea-captain,  with*  the  consent  of  one  of  the  executors',  paid 
the  captain  IDOL  for  the  discharge  of  the  legatee.  After  this  Mr. 
Jones,  with  the  like  consent,  placed  his  son-in-Jaw  at  a  military  aca- 
demy, the  expenses  of  which  amounted  to  another  100Z.  And  in 
conclusion  Mr.  Jones  flitted  him  out  and  sent  him  to  India  in  the  ser- 
vice of  the  East  India  Company  ;  the  expenses  attending  which  were 
200J.  The  total  amount  of  payments  for  the  maintenance  and  ad- 
vancement of  the  legatee  amounted  to  650Z.  Soon  after  the  legatee 
arrived  in  India,  he  attained  the  age  of  twenty-one,  and  sold  and 
assigned  his  legacy  to  the  plaintiff,  who  sought  to  recover  it  from 
the  executors,  who  contended  that  the  whole  legacy,  principal  and 
interest,  had  been  properly  applied  for  the  maintenance  and  ad- 
vancement of  the  legatee  ;  but  the  purchaser  insisted  that  no  pay- 
ments should  be  allowed,  except  of  so  much  interest  as  had  been 
applied  for  the  support  or  provision  of  the  legatee.  And  Lord 
Thurlow  said,  he.  was  not  satisfied  that  the  advancements  which  had 
been  made  were  for  necessaries.  In  particular  he  thought  the  1001. 
to  the  English  captain  was  too  much'.  He  therefore  ordered  the 
whole  legacy  to  be  paid,  with  interest  from  the  time  when  the  lega- 
tee attained  twenty-one. 

The  last  is  a  clear  authority  against  the  power  of  trustees  or  ex- 
ecutors to  apply  the  capital  of -legacies,  given  to  infants  for  their 
maintenance  or  advancement ;  there  they  were  neither  allowed  the 
expenses  of  the  legatee's  outfit  to  India,  nor  of  his  previous  educa- 
tion at  home,  so  far  as  the  payments  exceeded  the  interest  of  the  le- 
gacy, for  the  whole  capital  was  ordered  to  be  paid  to  the  purchaser. 

The  case  that  followed  was  Lee  v.  Brown,(m)  determined  by  Lord 
Alvanky,  in  which  the  testatrix  gave  to  her  brothers  and  executors, 
William  and  Edward  Brmvn,  100/.  in  trust  to  apply  the  interest  for 
the  maintenance  and  education  of  her  great  nephew  John  Lee  during 
his  minority,  and  to  transfer  to  him  the  capital  at  twenty-one,  with 
a  limitation  over  upon  his  death  under  that  age.  The  executors 
applied  more  than  the  interest  of  the  legacy  in  maintaining  and  edu- 

(Jt)  3  Bro.  C.  C.  60.  (0  Ibid.  178.  (m)  4  Ves.  362.  etvidefiost. 


594  Of  tht  Payment  of  Legacies.          [Cn.  XIV. 

eating  John  Lee.  They  also  paid  a  fee  of  one  hundred  guineas  on 
placing  him  as  an  apprentice  with  a  druggist.  WilliamBrown,  the 
executor,  left  him  a  legacy  of  200[.  to  be  paid  at  the  age  of  twenty- 
two,  appointing  his  co-executor  Edward  Broitin  his  own  executor. 
John  Lee  duly  authorized  a  Mr.  Orchard  to  receive  the  200Z.  for  him, 
and  all  other  njojiies  and  effects  due  fo  him.  Orchard  applied  to 
Edward  Brown  for  the  last  legacy  /in  the  year  1787,  which  he  re- 
ceived and  gave  a  discharge..  Not  any  demand  was  .made,  nor  notice 
taken  of  the  preceding  legacy  of-lOOl  nor  any  claim  made  for  it  till 
1797,  when  Lee  commenced  the  surt.  In  defence  to  which  Edivard 
Brown  insisted,  that  by  the  advancements  for  the  benefit  of  the  le- 
gatee during  minority,  the  -lOOl,  was  fully  and  properly  paid.  But 
Lord  Mvanley  was  of  the-contrary  opinion,,  upon  the  principle,  that 
the  executors  had  no.  pOwer  to  apply  more  for  the  maintenance  of 
the  legatee,  than  (he  interest  of  his  legacy.  That  they  were  not  at 
liberty  under  the  trust  reposed  in  them 'to  advance  any  part  of  the 
capital,  although  it  would  have  been  ever  so  much  for  his  advantage. 
His  Honour  was  also  of  opinion,  that  there  was  no  confirmation  by 
Lee  of  the  advancements,  nor  satisfaction  "of  the  bequest  by  the  sub- 
sequent legacy  of  200Z.  and  notwithstanding  an  acquiescence  of  ten 
years,  he  ordered  payment  of  the  100Z.  with  interest  from  the  filing 
of  the  bill -at  Al.  per  cent.,  but  without  costs. 

Upon  the  principle  of  the  preceding  authorities,  Sir  W.  Grant  de- 
termined the  case  of  Walker  v.  W£therett.(n]  It  appeared  that  in- 
fant children  were  entitled  to  portions  of  300Z.  each  under  the  will 
of  their  'father,  and  that  their  mother  married  one  of  the  executors, 
who  claimed,  arid  was  allowed  by  the  Master  slims  of  money  ex- 
pended in  the  maintenance,  education,  and  preferment  of  the  chil- 
dren, which  far  exceeded  the  interest  of  their  respective  fortunes. 
Whether  such  payments  ought  to  be  allowed  .was  the  simple  ques- 
tion, there  being  no  particular  circumstances  in  the  case.  And  Sir 
W.  Grant  wasr  of  opinion,  that  the  application  of  capital  could  not 
be  allowed  upon  principles  of  general  convenience. 

The  cases  which  have  been  mentioned  were  considered  as  bear- 
ing grievously  upon  executors,  but  a  particular  hardship  was  endur- 
ed for  the  sake  of  the  general  good.  If,  however,  a  court  of  equity 
can  discover 'a  clear  act  of  the  legatee,  when  of  age,  confirmatory  of 
the  application  of  his  legacy  by  the  executors  for  his  benefit  during 
minority,  it  will  hold  him  to  be  estopped  from  claiming  a  repayment. 
Hence,  if  a  legatee,  after  attaining  twenty-one,  with  a  knowledge  of 
his  rights,  and  upon  full  consideration  of  all  that  had -been  done  for 
him  during  infancy,  admit,'  by  any  act,  that  the  advancements  made 
for  him  while  a  minor  had  been  for  his  advantage,  and  that  he  ap- 
proved of  them,  and  was  willing  that  they  should  be  established,  he 
will  not  afterwards  be  permitted  to  dispute  their  propriety.  But  the 
intention  to  confirm  the  transactions  must  not  be  equivocal,  as  a 
person  is  not  allowed  -to  surrender  a  right  except,  his  intent  to  do  so 
be  manifest.  We  have  accordingly  seen  in  Lee  v.  Brown,(o)  that 
neither  the  receipt  of  the  subsequent  legacy  under  the  circumstan- 
ces before  stated,  nor  an  acquiescence  for  ten  years,  were  considered 
sufficient  to  preclude  the  legatee  from  disputing  the  proper  applica- 

"(TZ)  6  Ves.  473.  (o)  Ante,  p.  593. 


SECT.  II.]  OJ  the  Payment  of  Legacies. ,  595 

tion  of  the  legacy  given  him  by  the  will  of  his  great  aunt.  And  in 
Dagley  v,  Tolferry,(p]  when  it  appeared  that  the  father  had  been 
paid  his  child's  legacy,  an  acquiescence  by  the  child  for  fifteen  years 
did  not  extinguish  his  right  to  call  upon  the  executors  for  repayment. 
.  WJien  the  direction  to  the'  executor  is  not  to  pay  the  legacy  to 
the  child,  but  the  bequest  is  made  to  a  trustee  for  him,  the  executor 
will  be  justified  in  delivering  the  morley  to  the  person  so  appointed. 
Hence,  if  the  testator  order  the  sum  to  be  paid  to  the  father,  he  will 
be  a  trustee  for  his  child,  and  entitled  to  receive  the  money,  and  his 
receipt  wilj  be  a  good  discharge -to  the  executors.. 

Thus  in  Cooper  v.  Thornton,(q)  the  ^bequest  was  of  100Z.  "to 
Thomas  Cooper,  to  be  equally  divided  between  himself  and  his 
family."  The  legacy  was  paid  to  Thomas  by  one  of  the  executors, 
and  the 'only  question  was,  whether  the  payment  was  good  against 
the  clairns  of  the  infant  children1]  and  Lord  JLlvanley  decreed  in  the 
affirmative,  on  the  principle,  that  the  bequest  was  to  the  father,  in 
trust,  to  be  divided  by  him  between  himself  and  family.  And  his 
Lordship  put  these  cases,  "  if  a  man  give  a  legacy  to  the  senior  Six 
Clerk,  to  be  divided-  among  himself  and  the  other  six.  clerks,  I  think 
it  should  be  paid  to  the -senior,  and  the  executors  not  to  be  put  to 
inquire  who  were  the. other  six  clerks.  And  that,  if  this  had  been  a 
bequest  of  goods  to  A.  to  be  divided  between  himself  ^nd  family,  A. 
with  the  assent  of  the  executor,  might  bring  trover  for  the  goods." 

So  in  Robinson  v.  Tickell,(r]  the"  testatrix  bequeathed  to  her 
niece  Mrs.  Robinson  2000L  reduced  annuities"  in  these  words,  "  to 
M.  Robinson  for  her  and  her  children's  use."  The  suit  was  instituted 
by  Mrs.  Robinson  and  her  husband,  fora  transfer  of  the  fund,  which 
Sir  W.  Grant,  M.  R.  ordered^  referring  to  the  last  case. 

We  proceed  to  consider  in  the  next  place, 

B. — To  Whom  are  to  be  paid  legacies  given  to  married  woman. 

When  bequests  are  made  to  the  separate  use  of  married  women, 
they  alone  can  give  a  good  discharge  for  them.  Their  husbands 
have  no  interest  in  the  funds,  therefore  their  concurrence  is  un- 
necessary. But  when  the  .gifts  are  to  married  women  generally,  the 
money  ought  to  be  paid  tch  their  husbands-;  fdr  the  law  will  not  al- 
low a  married  Woman  either  to  receive  or  pay -money,  without  the 
concurrence  of  her  husband  ;  so  that  unless  she  act  as  his  agent  with 
due  authority, (s)  and  the  legacy  is  paid  to  her  in  that  character,  pay- 
ment of  it  to  her  alone  is  void  against  him,  and  he  may  recover  it 
against  the  executors  :(t]  notwithstanding  she  is -divorced  a  mensd 
et  thoro.(u) 

But  if  the  husband  have  not  made  any  provision  for  his  wife,  the 
executors  may  decline  to  pay  the  legacy,  until- he  consent  to  make  a 
suitable  provision  for  her,  as  the  Court  of  Chancery,  upon  the  bill  of 
the  .husband  for  the  money  would  refuse  to  order  payment  to  him, 
unless  he  consented  to  a  reasonable  settlement  out  of  it  upon  the 

(  fi}  Ante,  p.  590. 

(cf)  3  Bro.  C.  C.  96,  affirmed  on  appeal  by  Lord  Thurlow,  ibid.  186. 
(r)  8Ves.  142.  -  (*)'Palm.  206.  2  Freem.  178. 

(0  Palmer  v.  Trevor,  2  Vein.  261. 

(w)  Stephens,  v.  Totty,  Cro.  Eliz,  908.  1  Roll.  Abr.  343.  2  Ib.  301.  Bac.  Abr 
title  Legacies  (K. ) 


596  Of  the  Payment  of  Legacies.  [On.  XIV. 

legatee.     The  Court  is  in  the  constant  habit  of  acting  in  this  man- 
ner; therefore  one  authority  upon  the  subject  shall  suffice. 

In  Brown  v.  Elton,(x)  the  plaintiff  married  a  young  lady  who  was 
entitled  to  a  legacy  payable  on  her  marriage.  The  plaintiff  de- 
manded the  money,  which  the.  executor  refused  to  pay,  unless  the 
husband  would  make  some  settlement  or  provision  upon  his  wife. 
The  plaintiff  refused  to  do  so,  and  commenced  the  suit  to  recover 
the  legacy.  The  Master  of  the  Rolls  decreed,  that  the.  plaintiff 
should  lay  proposals  before  a  Master  for  a  settlement,  and  pay  .the 
costs  of  the  suit :  from  this  decree  he  appealed  to  Lord  King,  C., 
who  confirmed  the  decree,  except  as  to  'costs,  which  he  thought 
ought  not  to  be  paid  by  a  man,  merely  because  he  insisted  upon  a 
right  which  the  law  gave  him.. 

His  Lordship's  sentiments  upon  Courts  of  Equity  abridging  that 
right,  were  expressed  to  the  following  effect :  "  I  found  it. to  be  the 
practice  at  my  coming  into  this  Court,  to  enforce  the  husband,  be- 
fore he  recovers  his  wife's  portion  by  the  aid  of  equity,  to  make  a 
settlement;  and  as  such  practice  has  so  long  obtained,  I  shall  not  at 
this  time  take  upon  me  to  alter  it,  although  it  seems-to  break  in  upon 
the  legal  title,  which  the  husband  has  to  his  wife's  personal  estate. 
This  method,  however,  intended  originally  as  a  cautionary  provision 
in  favour  of  the  wife,  has  sometimes  proved  inconvenient ;  yet  cus- 
tom and  long  usage  have  sufficiently  established  it." 

But  when  the  wife  has  eloped  from  her  husband,  and  cohabits 
with  another  man,  the  executor  may  refuse  payment  of  her  legacy  to 
her  husband,  without  the  direction  of  a  Court  of  Equity.  First,  be- 
cause, in  such  a  case  the  Court  will  not  make  any  provision  for  such 
a  woman,  while  she  continues  in  that  state  of  life  ;  for  the  effect  of 
the  provision  would  be  to  enable  her  to  continue  the  same  criminal 
intercourse.  And  secondly,  it  will  riot  order  afiy  part  of  the  money 
to  be  paid  to  h.er  husband,  as  he  neither  supports  her,  nor  can  claim 
any  portion  of  the  fund  until  he  make  provision  for  her,  which  the 
Court  will  not  direct  in  this  instance.  It  seems,  that  all  it  could  do 
would  be,  to  order  the  legacy  to  be  paid  into  Court. (y) 

Yet  where  not  anycriminality  attaches  to  the  wife,  but,  while  she 
is  living  apart  from  her  husband  under  a  deed  of  separation,  a  le- 
gacy is  given  to  her,  as  the  Court  will  interpose  in  her  behalf  for  a 
provision,  and  the  husband  is  entitled  to  the  money  upon  making 
it,(2r)  the  executor  may  insist  upon  a  settlement  on  the  wife,  as  a 
condition  preceding  his  paying  the  legacy  to  the  husband. 

It  seems,  thajt  if  the  feme-legatee  be  the  subject  of  a  foreign  state, 
by  the  law  of  which  her  husband  would  be  entitled  to  receive  the 
whole  of  her  property,  without  making  any  provision  for  her,  the  Court 
will  order  the  fund  to  be  paid  to  her  husband,  without  requiring  him 
to  make  any  settlement,(a) 

The  Court,  in  making  a  provision  for  the  wife,  always  includes 
the  children  of  the  marriage.  But  whether  the  husband  shall  make 

(x)  3  P.  Will.  202. 

(y)  See  Sail  v.  Montgomery,  4  Bro.  C.  C.  339.  2  Ves.  jun.  191.  S.  C.  Carrv. 
Eastabrooke,  4  Ves.  146.  Law  of  Husband  and  Wife,  1  vol.  c.  7.  where  the  sub- 
ject is  more  particularly  considered. 

f  z)  March  v.  Head,  3  Atk.  720.  and  Law  of  Husband  and  Wife,  2,  vol.  ch.  22, 

(a)  Vid.  Campbell  v.  French,  3  Ves.  323.     1  Anstr.  63. 


SECT.!!.]  Of  the  Pay  men  t  of  Legacies .  597 

any  such  provision,  before  he  receives  the  legacy,  solely  depends 
upon  the  wife.  For  if  she,  at  any  time  before  the  businesses  com- 
pleted, appear  in  Court,  and  consent  that  her  husband  shall  have 
the  whole  of  the  legacy,  it  will  be  so  altered  that,  although  the  chil- 
dren be  thereby  disappointed, (6)  yet,  if  after  an  order  made  for  the 
husband  to  lay  proposals  before  a  Master  for  a  settlement,  the  wife 
die  without  waiving  it,  her  children, will  be  entitled  to  prosecute  the 
order,  and  obtain  a  pro  vision,  (c) 

The  equity  of  the  wife  to  oblige  her  husband  to  make  a  suitable 
provision  for  herself  and  children,  in. consideration  of  her  fortune,  in 
instances  where  he  cannot  obtain  the  whole  or  part  of  it  without  the 
assistance  of  a  Court  .of  Equity,  is  obligatory  upon  all  persons  claim- 
ing generally  from  or  under  him,  as  executors-,  assignees  in  bank- 
ruptcy j  or  insolvency,  or  assignees  by  deed  in  trust  to  pay  debts.  So 
that,  if  the  husband  become  a  b.ankrupt  or  take  advantage  of  the 
insolvent  acts,  or' assign  his  property  to  trustees -for  the  benefit  of 
his  creditors,  including  the  interest  of  his  wife,  they  will  be  obliged 
to  make  provision  for  her  and  children;  before  they  be  permitted  to 
receive  it,  whe'ther  the  legacy  be  absolute  or  for  life  only.(d) 

Whether  a  particular  assignee  by  purchase  from  the  husband,  of 
the.  wife's  legacy  be  liable  to  her  equity,  for  a  settlement,  has  been  a 
question  of  considerable  doubt,  and.  great. men  have  entertained  con- 
trary opinions  on  the  subject.  It  seeriis  however  to  be  the  better 
opinion  that  such  an  assignee  will  not  be  allowed  to  take  the  wife's 
equitable  property,  withoui  making  a  provision  for  her,  as  a  contrary 
adjudication  .would  enable  the  husband  to  defeat'  at  all  times  the 
care  and  caution- of  the  €ourt,  by  his  taking  up  money  of  a  .third 
person  and  assigning  the  legacy- in  payment. (e)  .  .. 

It  has  been  'genefally  understood  that  this  rule  of  the  Court  ex- 
tended to  cases,  as  well  wjiere  the  wife  was  only,  entitled  to  a  life 
estate  in  the  fund,  as  where  the  bequest  to  her  was  absolute.  But 
there  is  a  recent  determination  marking  a  distinction  between  the 
two  instances.  It  was  decided  that  if  the  dividends  of  stock  be  be- 
queathed to  a  married  woman  for  life,  her  husband  may  sell  it,  and 
the  purchaser  is  under  no  obligation  to  make  a  provision  out  of  it 
for  the  wife  and  children. 

The  case  alluded  to  is  Elliott  v.  Cordell,(f)  in  which  the  testator 
bequeathed  to  his  niece  Mrs.  ElKott  the  dividends  of  certain  impe- 
rial annuities  for  life.  .  She  had  infant  children  unprovided  for,  and 
the  dividends  of  the  imperial  annuities  were  sold  by  her  husband  to 
the  defendant,  and  were  assigned  by  her  and  her^  husband  to  a 
trustee  for  the  defendant.  'The  question  was,  whether  Mrs  Elliott 
was  entitled  to  a  provision  by  the  purchaser  out  of  the  dividends'? 
And  Sir  John  Leach,  V.  C.  determined  in  the  negative. 

As  the  last  may  be  considered  an  important  decision,  it  becomes 
necessary  to  ascertain  with  precision  the  weight  of  the  principal 

(6)  See  Law  o£  Husband  and  Wife,  ch.  7.  for  further  particulars. 

(c)  Ibid,  where  the  wife's  consent  will  and  will  not  be  effectual,  see  Law  of  Hus- 
band and  Wife,  1  vol.  ch.  6.  p.  243.  to  255.  and  vol.  2  ch.  20.  ip.  210,  &c. 

(d)  5  Madd.  156.  and  see  Husband  and  Wife,  1  vol.  ch.  7.  p.  266.     Pryorv. 
Hill,  4Bro..C.  C.-  139.  and  'Burdonv.  Dean,  2  Ves.  jun.  607. 

(e)  Husband  and  Wife,  ch,  7.  p.  266,  Sec.  and  Salisbury  v.  Netvton,  1  Eden.  370. 
(/)  5  Madd.  149. 

roi,.  i.  4  G 


598  Of  the,  Payment  of  Legacies.  [Cn.  XIV. 

reason  -assigned  in  support  of  the  judgment,  in  order 'to  discover 
the  necessity  for  distinguishing  between  an  interest  for  life,  and  a 
gross  sum  of  money  bequeathed  to  a  married  woman,  in  regard  to 
her  title  to  a  provision  against  the  vendee  of  the  husband :  for  it  was 
admitted  that,  as  against  the  husband  his  assignees  in  bankruptcy, 
or  under  the. insolvent  debtors  act;  the  wife  is  entitled  to  a  settle- 
ment. 

The  Vice  Chancellor  said,  that,  where  the  equitable  interest  given 
to  the  wife  was  absolute,  all  persons  claiming  under  the  husband 
took  his  interest,  subject  to. the  same  equity  with  whrch  it  was 
affected  in  his  possession ;  but  where  that  interest  was  for  life  only, 
the  husband  was  entitled  to  enjoy  it  without  making  any  provision 
for  his  wife.  But  it  is  presumed  that  the  latter  propositiori  must  be 
received  with  limitation.  'For  if  the  husband  can  procure  payment 
of  the  annual  produce  of  the  fund,,  he  has  the  same  right  to  enjoy  it 
without  recal,  as  if  it  had  been  a  gross:  sum  absolutely  given  to  his 
wife,  the  receipt  of  \vhich  he  had. .procured [without  suit.  But  if  he 
be  obliged  to  resort  to  a  Court  of  Equity  for  payment  of  either,  then 
it  is  considered  that  the  Court  will  not. assist  him,  previously  to  sub- 
mission, to  make  la  settlement  on  his  wife.  That  this  would  be  the 
case,  if  the  interest  of  the  wife  was  only  for  life  is  not-  destitute  oC 
authority/ as  was  supposed  by  his  Honour,  so  that  his  apprehen- 
sions that  in  determining  in  favour  of  the'wtfe,  he  should  not  be 
administering  the  law  of  the  Court,  but  be" making  a. new  law,  (a 
jurisdiction  he  disclaimed),  do  not  seem  to  have  been  Well  founded. 
We  have  the  authority  of  Lord  JKosslyn  for  the  proposition,  that, 
whether  the  interest  of  the  wife  be  only  for  life,  or  be  absolute,  in 
the  property,  the  husband  cannot  enforce  in  equity  the  payment  of 
it,  without  first  consenting  to  make  a  settlement;  -and  if  such  be  the 
rule  as  considered  by  his  Lordshipj  then  upon  the  principle  admitted 
by  his  Honour  in  the  present  case,  the  husband's  particular  as-, 
signee  must  take  the  assignment  of  the  chose  in  action,  subject  to 
the  same  equity. 

In  Ball  v.  Montgorhery,(g)  50QOZ.,  three  per  cent  annuities  (the 
wife's  property)  were  settled  upon -her  marriage,  but  no  provision 
was  made  by  the  settlement  for  the  payment  of  the  dividends  during 
the  overture ;  which,  on  the  ground  of  mistake,  the  husband  sought 
to  rectify  by  the  aid  of  a  Court  of  Equity,  and  he  prayed  that  the 
dividends  might  be  declared, to  belong  to  him  during  the  marriage 
in  opposition  to  his  wife,  who  had  eloped  from  him  and  was  living 
in  adultery,  she  claiming  such  dividends  to  her  separate  -use  under 
an  alleged  prior  agreement,  Lord  Rosslyn  refused  to  correct  the 
settlement,  as,  without  an  *xpr~es$  provision,  the  dividends  were 
payable  to  the  husband  during  the  coverture.  The  question  then 
was,  whether,  as  the  husband,  who  would  in  an  ordinary  case  be 
entitled  to  the  dividends,  was  so  in  the  present  instanced  and  if  en- 
titled,, whether  he  ought  to  make  a  provision  for  his  wife ;  and  it  was 
admitted  by  counsel  on  both  sides,  that  where  there  was  not  any 
contract  for  the  husband  to  receive  the  dividends  of  property  be- 
longing to  the  wife  during  the  coverture,  the  husband,  if  he  were 
obliged  to  resort  to  equity  to  compel  their  payment,  must  submit  to 

(£)  4  Bra  C.  C.  339.    2  Ves.  jun,  196.  S.  C. 


SECT.  II.]  Of  the  Payment  of  Legacies.  599 

make  a  provision  fo*  his  wife,(A)  but  the  counsel  for  the  husband  con- 
tended that  there  was  such  a  contract  in  this  instance,  which  was  de- 
nied by. the  Court.  And  Lord  Rosslyn  said,  "  I  can  make  no  distinc- 
tion between  this  case  and  that  of  a  sum  of  money  so  given,  that  the 
husband  could  not  obtain  it,  but  by  coming  to  this  Court,  which  is 
the  case,  wherever  a  woman  is  entitled  without  an  appropnation.(i) 
The  delinquency  of  the  woman  is  in  this-case  a"  reason  for  not  giving 
it  to  her,  and  I  cannot  give  the  whole  to  the  husband,  on  account 
of  her  interest.  I  must  secure  a  part  for  her,-  or  reduce  her  to  beg- 
gary. This  will  lead  to 'an  agreement  to  make  a  provision  for  her. 
Probably,  had  'the  last  case  been  cited  in  argument,  or  occurred  to 
the  Vice  Chancellor,  his  decision  would  HaVe  been  otherwise  than 
what  it  was.  Therefore  the  case  of  Elliott  v.  Cordell  wants  con- 
firmation. 

An  executor  or  trustee  may  pay  the  wife's  legacy  to  her  husband, 
which  will  Defeat  her  right  to  a  settlement ;  but  if  there  be  a  suit 
pending,  the  executor  or  trustee  cannot  make  the  payment,  because 
his  office  is  suspended,  and  the  Court  of  Chancery  has  become  the 
trustee. (k]  (Z) 

'The.  recent  case  of  Adams  v.  Lavender, (m)  determined  that  the 
wife*  was  entitled  by  survivorship,  td  a  legacy  which  devolved  upon 
her  during  the  coverture;  and- for,  recovering  which  a  suit  had  been 
instituted  by  her  husband  in  their  joint  names,  and  a  decree  had 
been  obtained  during  his  life,  for  an  account  merely,  and  not  for  the 
actual  payment  of  the  money*  due.  Alexander-,  C.  B.  observed,  that 
no  case  he  could  find  went  the  length  of  showing,  that  if  the  hus- 
band and  wife  sued  in  their  joint  names,  a  decree  for  payment  would 
have  the*  effect  of  barring  her:  under  such  circumstances,  a  Court 
of  Equity  would  follow  the  rule,  at  law!  But  in  this  instance,-the 
decree  had  not  gone  so  far,  but  only  to  the  extent  of  an-  account 
be  fore  .the  Deputy  Remembrancer. 

C. — With  respect  to  the  payment  of  a  legacy  to  a  lunatic.     . 

A  lunatic  is  legally  incapable  of  contracting,  yet  as  he  may  have 
lucid  intervals,  acts  done  by  him  during  such  interval  of  sanity  are 
binding  ;(n)  but  otherwise  his  acts  (except  by  matter  of  record,)(o) 
are  void  at  law,  and  after  office  found  may  be  avoided  by  the  King, 
by  virtue  of  the  statute  de  prerogativd  regis.(p)  The  King  is,  ab- 
solutely entitled  to  the  profits  of  an  idiot's  estate,  subject  to  the 
maintenance,  of  the  idiot. ;(?)  but  with  respect,  to  lunatics,  he  is 
merely  a  trustee,  and,  by  special  warrant/usually  entrusts  the  Chan- 
cellor, as  Keeper  of  the  Great  Seal,  with  the  care  of  lunatics. 
'Chancellor,  after  office  found,  appoints  a  committee  of  the  person 
and  estate  of  the  lunatic .;  and,  thus  appointed  by  and  under  the 
control  of  the  Chancellor,  the  committee  is  invested  with  all  powers 
necessary  to  the  discharge  of  his  office,  as  bailiff  and  receiver  of  the 

(A)  2  Yes.  jun.  1%.  197. 

(z)  Or  as  in  Vesey,  "  and  it  is  not  specifically  given  to  the  husband. 

(«  Murray  v.  Elibank,  10  Ves.  90.  Macaulay  v.  Philifis,  4  Ves.  18.  Doswell 
v.  Earle,  12  Ves.  473.  ,  ,  . 

m  As  the  rights  of  the  wife  and  children  to  a  settlement  are  fully  detailed  in 
1  vol.  of  Roper's  Husband  and  Wife,  c.  7.  it  is  thought  unnecessary  to  enter  further 
into  the  subject  in  this  place.  (wi)  M'Clel.  &  Young.  R.  Exch.  41. 

(n)  9  Ves,  610.        (o)  Severlay't  case,  4  Coke,  127.        (/O  17  Edw.  2.  c.  10, 

(?)  Ibid.  c.  9,-  2  Scho.  ?c  Leaf.  153.     In  re  Fitzgerald;  435. 


600  Of  the  Payment  of  Legacies.  [Cn.  XIV. 

estate  of  the  lunatic.     It  is  therefore  his  duty  to  watch  over  the  in- 
terests of  the  lunatic,  and  to  enforce  his  rights. 

But  though  void  at  law,  the  acts  of  a  lunatic  may,  under  circum- 
stances, be  supported  in  equity.  It  does  not  appear  that  the  validity 
of  such  acts  depends  upon  the  question,  whether  they  were  or  were 
not  done  before  office  found,  but  whether  the  person  contracting  or 
dealing  with* the  lunatic  erttered  into  such  contract  or  dealing  bond 
fide,  and  without  notice  of  his  irnbecility.  If,  therefore,  a  legacy  be 
paid  by  an  executor' bohn  fide  and  without  notice  to  a  lunatic,  who 
should  afterwards  be  found  by  an  inquest  fo  have  been  non,  compos 
with  lucid  intervals  previously  to  the  time  of  payment, .it -should  seem 
clearly  that  such  payrn^nt  Would  be  supported,  if  the  executor 
could  establish  a  lucid  interval  at  the  time  of  payment.(r)  But  even 
if  the  finding,  in  the  case  supposed,  had  bten  thai  the  lunatic  was 
non  compos  without  lucid  intervals  before  or  at  the  time  of  payment, 
it  should  appear,  that  if  the  executor  could  prove  the  payment  made 
bonu  fide,  and  without  notice,  the  Court  would  not  interfere  to  set 
aside  the  payment,  but  leave  the  party  seeking  the  aid  of  the  Court 
to  his  remedy  (if  any)  at  law.($) 

If  however  a  commission  have  issued,  and.  a  committee  .be  ap-- 
pointed,  he  is  the  proper  person  to  receive -and  give  a  discharge  for 
a  legacy  due  'to  the  lunatic";  and'it  may  perhaps  be  stated  as  a  gene- 
ral rule,  that  in  such  case  payment  of  the  legacy  to  the  lunatic  is 
void,  and  it  may  be. recovered  by  the  committee  from  the  executor. 
If,  in  the  case  last  supposed,  thje  inquest,  "upon  which  the  commis- 
sion was  founded  hao*  found  the  lunatic  with  lucid  intervals,  any 
subsequent  payment  to  the  lunatic  during  a  lucid  interval,  could  it 
be  established,  would  be  "very  hazardous  ;  since,  until  the  commis- 
sion is  superseded,  it  is  presumed  the  committee  is  the  only  proper- 
person  to  receive  the  legacy;  and  the  risk  would  be  in  proportion 
to  the  difficulty  of  proving  the  want  of  notice  of  the  lunacy. 

It -is  difficult,  if  not  impossible,  to  lay  down  general  rules  that 
shall  be  applicable  to  every  case,  since  each  must  depend  in  a  great 
measure  upon  its  own  peculiar  circumstances.  • 

If  a  legacy  be  given  for  the  benefit  of  the  legatee,  in  one  way, 
and  on  account  of  his  subsequently  becoming  lunatic  it  cannot  be 
so  applied  it  may,  it  would  appear,  be  applied  for  his  benefit  in 
another  mode.(£) 

D. — With  respect  to  a  legacy  given  to  a  bankrupt.  . 
Where  a  legacy   is  given  to  a  bankrupt,  before  the  certificate  is 
'allowed  and  confirmed  by  the  Chancellor,  the  legacy  must  be  paid 
to  the  assignees. 

In  Tudway  v.  Bourn,(u]  a  testatrix  bequeathed  a  legacy  of  2001. 
to  one  Coward  a  bankrupt,  whose  certificate  had,  at  the  time  of  the 
testatrix's  death,  been  signed  by  t'he  majority  of  his  creditors  in-  num- 
ber and  value,  and  also  by  the '  commissioners ;  after  the  bank- 
rupt's death  and  before  the  allowance  of  the  certificate,  the  commis- 
sioners assigned  the  legacy  to  an  assignee  for  the  creditors.  'Upon 
a  question  referred  to  the  Court  of  King's  Bench,  whether  the  legacy 

.   l(r)  Hall.v.  Warren,  9  Ves.  605.  .    (*)  Niell  v.  Morley,  9  Ves.  478. 

(0  Per  Sir  W.  Grant,  5  Ves.  463.     See  Eartow  v.  Grant,  1  Vern.  255. 
(M)  2  Burr.  717. 


SECT.  II.]  Of  the  Payment  of  Legacies.  601 

belonged  to  the  bankrupt's  executor  or  to  his  creditors,  the  Judges 
certified,  that  the  legacy  vested  in  the  assignee  for  the  benefit  of  the 
bankrupt's  creditors. 

E.— When-  the  legacy  is  given  to  a  legatee  who  has  been  abroad 
and  not  heard  of  for  a  long  time. 

In  such  case  he  has  been  presumed  to  be  dead,  and  the  legacy 
paid  to  .those  who  would  be  entitled 'in  that  event ;  they  giving  secu- 
rity to  refund,  in  case  the  legatee  should  return. 

In  Norris  v.  Norris^x)  a  legacy  was  given  to  one  of  two  brothers 
who  went  beyond  sea,  and  after  five  years  absence,  the  other,  sug^ 
gesting  he  was  de,adv. took  out  administration,  and  sued  for  the  lega- 
cy, which  was  decreed,  he  giving  security  to  refund  if  the  legatee 
should  return. 

'  In  Dixonv.  Dixon,(y)  a. legatee  having  been  abroad  twenty-eight 
years,  and  not  having  been  heard  of  for  twenty-seven  years,  Lord 
Jllvanley,  M.  R.  said  he  would  presume  him  to  be  dead.  . 

Again,  in  Mainwaring  v.  Baxter,(z)  a  party  was  presumed  to  be 
deaf  after  an  absence  of  sixteen  years  without  any  tidings  of  her. 

In  Bailey  v.  Hammond,(a)  the  same  presumption  was  made  after 
an  absen'ce  of  twenty  years  ;  but  security  was  taken  'there  to  refund  . 
in  case  of  a  claim. 

But  where  the  fact  of  death  is  doubtful,  and  the  parties  wish  it,  the 
Court  will  direct  an  issue;(&).  . 

The  statute  36  Geo.  3.  c.  52,  sect.  32,  authorizes  the  executor  or 
administrator  to  pay  legacies  given  to  persons  abroad  into  the  Bank, 
with  the  privity  of  the  Accountant  General,  as-  in  cases  of  legacies 
given  to  infants. 

6.  As  to  deductions  and  retainer,     , 

A.--And,  first,  with  respect  toUhose  legacies  which  are  subject  to 
deduction  for  duties  under  the  Stamp  Acts,  and  the  quantum  of  duty 
payable. (c)  Legacies  of  every  description,  including  donations 
mortis  causa-,  of  .or  above  the  value  of  20J.  each,  and  payable  out  of 
personal  estate,  or  out  of  or  charged, upon  real  estate,  or  out  of  the 
monies  to  arise  by  sale  or  mortgage  or  other  Disposition  thereof; 
also  clear  residues  or  shares  of  clear  residues  of  personal  estate,  or 
of  monies  to  arise  from  the  sale,  mortgage,  or  other  disposition  there- 
of, and  whether  'given  by.  way  of  arinuity  or  otherwise,(d)  are  charg- 
ed with  certain 'duties  imposed  by  several  Acts  of  Parliament  refer- 
red to  in  note. (e)  These  duties  are.  to  be  ultimately  paid  by  the 
respective  legatees,  unless  expressly  exempted  therefrom  by  the 
will  of  the  testator,(/}  in  which  case  they  are  payable  by  the  exe- 
cutors or  administrators  out  of  the  effects  of  the  deceased.(g) 

Legacies  charged  upon  or  payable  ont  of  the  produce  of  real  es- 
tate were  not  subject  to  the  payment  of  duty,  until  the  45  Geo.  3.  c. 

f-rl  Finch   R'  419;  '  (y)  3  Bro.C.  C.  510.  (^  5  Ves.  458. 

Sib  7  590  (V  Mason  v.  Mason,  1  Men  308. 

lei  The  limits  of  this  work  will  not  admit  of  a  very  detailed  view  ot  the  Stamp 
Acts  which  relate  to  the  subject  of -Legacies,  but  it  was  thought  an  epitome  of 
some  of  the  principal  enactments  would  not,  under  this  head,  be  unacceptable 

Id)  sVoeo.  3.  c.  52.  sect.  7,  8.     45  Ib.  c,  28.  s.  4.    55  Ib.  c.  184.  Sched.  part.  3. 
(e)  20  Geo;  3.  c.  28,  s.  3.    23.  Ib.  c.  58.  s.  8, «  29  Ib.  c.  51.     36  Ib.  c.  52.     44  Ib. 
C.  98.     45  Ib.  c.  28.     48  Ib.  q.  149.     55  Ib.  c.  184. 
(/)  See  36  Ib.  e.  5?.  s.  21.  (#)  Burksdale  v.  Gilliat,  1  Swan.  562. 


602  Of  the  Payment  of  Legacies  [Cn.  XIV. 

28.  In  that  Act,  however,  there  is  an  exception,  which  exempts 
from  duty  any  sum  of  money  charged  by  marriage  settlement  or  deed 
upon  any  real  estate,  and  which  sum  shall  be  appointed  by  will  in 
exercise  of  the  power. (h) 

The  scale  of  duties  has  been  varied  from  time  to  time,  each  Act 
in  succession  repealing  the  duties  of  that  which  preceded  it,  and 
incorporating  such  provisions  of  the  former  Acts  as  were  not  ex- 
pressly repealed  by  or  inconsistent  with  the  last  Act  for  the  time 
being,  (i) 

. '  Legacies  of  every  description;  as  before  specified,  with  the  excep- 
tion of  such  as  are  given  to  husband  or  wife  of.  the  deceased,  to 
any  of  the  royal  family,('fe)  or  to  certain  bodies  corporate, (I)  are 
charged  with  the  following  duties  upon  the- amount  or  value  of  such 
legacies. 

When  the  legatee  is- a  .child,  or  descendant  of  any  child,  of  the 
deceased,  or  the  father,  -mother,  or  any  lineal  ancestor  of  the  de- 
ceased, a  duty  of  \l.  ' per-* •  cent.  When  the  legatee  is  a  brother  or 
sister,  or  any  descendant  of  a  brother  or  sister  of  the  deceased,  a 
duty  of  3Z.  per  cent.  When -the  legatee  is  the  brother  or  sister,  or 
.  the  descendant  of  a  brother  <or  sister  of  the  father  -or  mother  of  the 
deceased,  a  duty  of  5iJ  per  cent.  When  the  legatee  .is  a  brother  or 
sister  or  a  descendant  of  a  brother  er  sister  of  the  grandfather  or 
grandmother  of  the  deteased,  a  duty . of  61.  per  cent.  And  whete 
the  legatee  is  in  any  other  degree  of  collateral  consanguinity,  or 
any  stranger  in  blood  to  the  deceased,  a  duty  of  10Z.  per  cent. 

The  value  of  annuities,  or  legacies  given  in  the  way  of  annuity, 
is  computed  according  to  the- tables 'annexed  to.  the  statute  36  Geo. 
3.  c.  52.  si.  8.  and  the  duties  are  .payable  on  such  value,  according 
to  the  scale  .before  stated,  by  four  equal  instalments;  the  first  of 
which  shall  be -made  before  or  on  completing  the  payment  of  the 
first  year's  annuity,  and  the  three  other  successively  before  or  on 
completing  the  three  succeeding  years  .annuity ., . 

The  duty  on  a  legacy  or  residue  to '  be  -  enjoyed  in  succession, 
chargeable  with  duties  at  the  same  rate,  must  be  charged  upon  and 
paid  out  of  such  legacy  or  residue,  as  if  the'  same  were  given  to  one 
person ;  but  if  some  or  one  of  such  persons,  taking  in  succession, 
are  charged  with  no  duty  and  some  with  different  rates  of  duty, 
the  duty  shall  be  charged  on  the  persons  taking  a  life  or  other 
temporary  interest  in  such  "bequest,  in  the  same  manner  as  if  it 
were  given  by  way 'of  annuity.  And  the  .person  ultimately  and 
absolutely  entitled  to  such  legacy  given,  in  succession,  shall,  when 
such  person  receives  the  same,  pay  the  duty  upon  the  same  or  so 
much  as  shall  be  received,  in  the  same  manner  as  if  it  had  come 
to  such  person  immediately  upon  the  death  of  the  testator. (m) 

Legacies  given  subject  to  contingencies,  defeating  the  same, 
unless  chargeable  as  annuities,  are  subject  to  the 'same  duties  as  if 
they  were  absolute. (n) 

Legacies  subject  to  a  power  of  appointment  to  persons  specified, 
are  chargeable  with  duty  in  the  same  manner  ,as  a  legacy  in  suc- 
cession. And  where  property  is  given  for  a  limited  interest,  and 

(A)  Sect  4.  (i)  55  Geo.  3.  c.  184.  s.  8.  (£)  45  Ib.  c.  28.  s.  3. 

(/)  39  Ib.  c.  73.  42  Ib.  c.  99.  s.  4.      (m)  36  Geo.  3.  c.  52.  s.  12.      (»)  Ib.  s.  i7. 


SECT.  II.]  Of  the  Payment  of  Legacies.  603 

an  absolute  power  of  appointment  is  given  to  a  person  to  whom 
the  property  to  be  appointed  would  not  go  in  default  of  appoint- 
ment, the  duty  upon  the  execution  of  the  power  will  be  payable,  in 
the  same  manner  as  if  the  interest  were  absolutely  given  to  the  per- 
son exercising- the  power.  And  where  the  power  is  given  to  the 
person  absolutely  entitled  in  default  of  execution,  the  duty  will  be 
chargeable  in  the  same  manner  on  the  property,  as  if  it  were  abso-. 
lutely  given  without  any  power. (o) 

Money  or  personal  estate,  .directed  to  be  laid  out  in  the  purchase 
of  real  estate,  must  pay  duty  as  personal  estate,  given  in  succession 
or  otherwise,  according  to  the  nature  of  the  interest  in  the  real 
estate.^)  Under  this  division  of  the  subject,  it  will  be  proper  to 
notice  some  decisions  made  on  the  Acts  before  specified. 

Real  estate  devised  to  be  sold,  and  the  produce  to  be  deemed 
part  of  the  residue  of  the  testator's  estate,  and  to  go  (if  necessary) 
in  aid  of  his  personal  estate  in  discharge  of  money  legacies,  is  lia- 
ble to  the  legacy  duty  imposed  by  statute  -.48 .  Geo.  3.  c.  149, 
although  the  estate  be  not  converted  into  money,  and  the  residuary 
legatee  take  the  property  in  statu  quo.  This  was  settled  in  Jlttor^ 
ney  General  v.  Holford,(q)  upon  the  principle,  that  in  equity  the 
subject  of  such  a'bequest  would  go  after  the  legatee's  death  to  his 
personal  ^representatives. 

It  has  been  decided  that  legacies  bequeathed  by  a  British  sub- 
ject in  India,  out  of.  his  personal  estate  to  persons  in  England,  are 
liable  to  the,duty,  if  the  executor  prove  th&will  and  pay  the  legacies 
in  England;  notwithstanding  the  testator  realized  and  possessed 
his  property  in  India,  resided  and  made  his  will  there,  and  although 
the  executors  were  in  India  at  the  time  of  their  appointment,  and 
the  will  were  originally  proved  there.  This  was  decided  in  the 
case  of  the  Attorney  General  v.  Cockerell.(r) 

•  So  where,  upon  the  death  of  a  testator  domiciled  in  India,  admi- 
nistration with  the  will  annexed  was  taken  out  at  Madras,  and 
also  by  another  person  in  Scotland,  and  the  Scotch  administrator,  as 
residuary  legatee,  applied  to  his  own  use  the  surplus  which  the  ad- 
ministrator in  India  had  remitted,  after  ihe  payment  of  debts,  it  was 
held,  that  the  residuary  legatee  in  Scotland  was  liable  to  the  duty, 
because  the  estate  was  "applied  there. (s) 

So  also,  where  no  administration  is  actually  taken. out,  but  a  suit 
instituted  by  the  legatees  against  the  executors  abroad  and  his  agents 
in  England,  legacy  duty  will  be  payable ;  because  previously  to  such 
a  suit,  administration  ought  to  be  taken  out,  and  the  administrator 
made  a  party.  This  was  decided  in  the  late  case  of  Logan  v.  Fair- 
lie,(t)  where  the  following  distinction"  was  laid  down  by  Sir  John 
Leach,  V.  C.  "If  a  testator  die  in  India,  and  his  personal  estate  be 
wholly  in  India,  and  his  executor  be  resident  there,  and  the  will  be 
proved  there,  and  the  executor  remit  'to-  a  legatee  in  England,  or  to 
some  other  person  in  England  for  the  specific  use  of  the  legatee,  the 
amount  of  his  legacy,  I  am  of  opinion  that  the  legacy  duty  is  not 
payable  upon  such  remittance,  inasmuch  as  the  whole  estate  is  ad- 

(0.)  Ib.  s.  18.  (/O  Sec.  19.  also  45.  ch.  28.  sect.  5. 

(?)  1  Price,  Excheq.  Rep.  426.  (r)  i  Price,-  Exc.  Rep.  165. 

(*)  Alt.  Gen.  v.  Beatson,  7  ib.  560.         (fj  2'Sim.  8c  Stu.  284. 


604  Of  the  Payment  of  Legacies.  [Cn.  XIV. 

ministered  in  India,  and  the  remittance  is  in  respect  of  a  demand, 
which  is  to  be  considered  as  established  there.  But  if  a  part  of  the 
assets  of  the  testator  is  found  in  England,  in  the  hands  of  the  agent 
of  such  executor,  without  any  specific  appropriation,  and  a  legatee 
in  England  institute  a  suit  here  for  the  payment  of  his  legacy  out  of 
such  unappropriated  assets,  then,  such  assets  are  to  be  .considered 
as  administered  in  England,  arid  the  legacy  duty  is  payable  in  re- 
spect of  them. 

But  where  the  testator  died  in  /ra?ia,.and  the  property  was  admi- 
nistered by  executors  there,  who  specifically  appropriated  in  India 
securities  sums  for  the  satisfaction  of  legacies*  and  remitted  the  divi- 
dends to  England  for  the  benefit  of  a  legatee,  for  whom  a  guardian 
was  appointed  by  the  Court  of  Chancery,  it  was  held  no  duty  attached 
upon  such  remittances. (u) 

A  legacy  given  by  a  will  before  the  5th  of  April  1805,  but  not 
paid,  retained,  satisfied,  or  discharged,  is  subject  to  the  duty  im- 
posed by  the  48  JGeo.  3.  c.  149.  sect.  3.  A  legacy  was  given  in 
1771  to  a  legatee  for  life,  and  after  his  death  to  his  children;  in 
1794  the  executors  invested  it  in  their  own  names,  and  the  interest 
was  duly  paid  to  the  legatee  for  his  use  until  18.12, when  he- died; 
and  it  was  decided  that  the  legacies  to  .the  children  were  subject  to 
the  duty  of  Si.  per  cent.,  notwithstanding  the  investment  by  the 
executors.  (#) 

But  in  a  case  where  3QOOZ.  was  given  to  trustees  to  invest  it  and 
pay  the  interest  to  A.  for  life,  and  after  his  death  to  transfer  it  to  B. 
and  under  a  decree  the  legady  was  paid  into  Court  and  invested, 
previously  to  the  duty  imposed"  by  20  Geq.  3.  c.  28..;  B.  being  then 
an  infant,  it  was  hejd  that  it  was  a  sufficient  appropriation  of  the. 
legacy  within  the  words  of  stat.  48  Geo.  3.  c.  149.  "paid,  retained, 
satisfied,  and  discharged',"  before  the  10th  of  October  ISQS.(y) 

Where  one.  legacy  is  given  by  will,  free  of  duty,  arid  by  a  codicil 
another  is^given  in  substitution  of  that  given  by  the  will,  and  upon 
the  same  trusts,  the  substituted  legacy  is  also  free  from  the  duty 
which  must  be  paid  by  the  testator's  effects.' 

This  wafe  settled  in  the  case  of  Cooper  v.  Day^z)  where  the  tes- 
tator gave  40QOZ.  to  trustees,virr  trust  for  his  daughter?,  and  directed 
the  legacy  duty,thereon  to  be  paid  out  of  the  residue.  By  a  codicil 
he  revoked  the  gift  of  4000Z.  and  gavt  5000^.  upon  the  same  trusts, 
&c.  as  were  expressed  by  the  will  concerning  the  legacy  of  4000Z. ; 
then  by  second  codicil  he  revoked  the'  gift  of  uOOOi.  and  gave  6000Z. 
upon  the  same  trusts;  and  It  was  held  that  this  was  not  a  revocation, 
but  a  substitution  in  each  instance,  and  therefore  that  the  6000/,  was 
exempt  from  the  legacy  duty;  •'.  •  . 

So  also,  where  a  testator  bequeaths  a  legacy,  declaring  that 'it 
should  be  exempted  from  duty,  and.  afterwards  bequeaths  a  subse- 
quent legacy.either  by'his5  will  of -by  a  codicil,  "  in  addition"  to  the 
former  legacy,  it  should  seem  thev additional  legacy  would  be  subject 
to  the  incidents  and  conditions  of  the  former,  and  consequently  be, 
like  it,  free  from  the  legacy  duty, (a)  . 

'  (M)  Hay  v.  Fairlie,  \  Russ.  117.  -(x}  Alt.  Gen.  v.  Lady  Manners,  1  Price,  411. 
(yYHiilv.  Atkinson,  2  Mer.  45.  A'.  C.  3Pri.  399.  (z)  3  Mer.  154.  ante,  587, 
(a)  Chtttttru  v.  Young,  6  Mad.  SO, 


SECT.  II.]          Of  the.  Payment  of  Legacies.  005 

So  where  a  legacy  is  given  "without  deduction"  the  legatee  will 
not  be  chargeable  with  the  duty,  but  the  executor  must  pay  it  o.ut 
of  the  testator's  assets. (6) 

B.— We  next  proceed  to  consider,  by  whom  the  duties  are  to  be 
paid  and  retained. 

The  Act  of  36  Geo.  3.  c.  52,  enacts,  that  the  duties,  in  all  cases 
wherein  it  is  not  otherwise  thereby  provided  for,(c)  must  be  paid  by 
the  executor  or  administrator,  upon  retainer  for  their  own  benefit,  or 
for  the  benefit  of  any  other  persons,  of  any  legacy  or  part  of  legacy, 
or  of  the  residue  or  any  part  of  such  residue,  which  they  shall  be  en- 
titled so  to  retain  ;  and  also  upon  delivery,  payment,  or  discharge  of 
any  legacy  or  residue,  &/C.  to  which  any  other  person  shall  be  enti- 
tled ;  and  in  case  such  executor  or  administrator  shall  so  retain  such 
legacy  or  residue,  &c.  upon  which  duty  is  thereby  chargeable,  not 
having  first  paid  the  duty,  or  shall  deliver,  pay,  or  discharge  any  le- 
gacy or  residue,  &,c.  to  which  any  other  person  shall  be  entitled, 
having  received  or  deducted  the  duty,  then  the  duty  chargeable  on 
every  such  legacy,  &c.  which  shall  not  have  been  paid,  shall  be  a 
debt  from  such  executor  or  administrator  to  the  King  ;  and  in  case 
they  shall  have  paid  the  legacy  or  residue  without  having  received 
or  deducted  the  duty,  then  it  shall  be  a  debt  due  to  the  King,  both 
from  them  and  also  from  the  persons  to  whom  the  legacy  or  residue 
shall  have  been  paid. 

The  duty  charged  on  an  annuity,  or  on  a  legacy  by  way  of  annuity, 
is  calculated  according  to  the  Tables,  of  the  Act,(rf)  and  must  be 
paid  by  the  persons  entitled  to  the  same,  and  deducted  by  four  suc- 
cessive instalments  out  of  the  four  first  years,  annuity. 

The  duty  on  a  legacy  or  residue  to  be  enjoyed  by  different  per- 
sons in  succession  on  whom  the  duty  is  chargeable  at  one  and  the 
same  rate,  shall  be  deducted  and  paid  by  the  executor  or  adminis- 
trator on  payment  of  every  or  any  part  of  the  legacy  or  residue  to 
any  trustee  or  other  person  to  whom  the  same  shall  be  payable ;  and 
where  the  legacy  or  residue  shall  not  be  paid  to  a  trustee,  the  duty 
shall  be  deducted  out  of  the  capital  of  the  property  so  given,  on  re- 
ceipt by  any  of  the  persons  so  entitled  in  succession,  of  any  produce 
of  such  capital,  according  to  the  amount  of  the  capital  of  which  such 
produce  shall  be  so  received ;  and  where  the  duty  shall  be  chargea- 
ble at  different  rates,  so  that  the  same  cannot  be  paid  at  once  but  in 
succession,  then  the  executor  or  administrator  shall  be  chargeable 
with  such  duties  in  succession,  in  the  same  manner  as  such  persons 
would  be  chargeable  in  case  of  immediate  bequest ;  unless  where 
the  property  bequeathed  shall  have  been  paid  to  or  vested  in  any 
such  trustees  ;  in  which  case,  the  trustees  or  their  representatives 
shall  be  chargeable  with  the  duties  in  the  same  manner  as  if  they 
were  executors  or  administrators  of  the  will  in  which  the  bequest  was 
contained  ;  and  where  any  partial  interest  shall  be  given  or  shall 
arise  out  of  any  such  property  so,  to  be  enjoyed  in  succession,  and 
such  partial  interest  shall  be  satisfied  by  the  person  so  enjoying  such 
property,  such  person  shall  be  chargeable  with  the  duties  in  respect 
of  such  partial  interest,  and  pay  and  retain  the  same  accordingly,  as 

(6)  Barksdalf  v.  Gilliat,  1  Swanst.  562. 

(c)  36  Geo.  3.  c.  52.  s.  6.  (d)  Ib.  sect.  8. 

VOL.  i.  4   H 


606  Of  the  Payment  of  Legacies.  [Cn.  XIV. 

if  he  were  executor  or  administrator  of  the  will,  and  the  persons  so 
chargeable  with  duty  shall  be  debtors  to  the  King,  and  subject  to 
the  same  penalties  as  if  they  were  executors. (e) 

Respecting  the  valuation  of  specific  legacies  see-36  Geo.  3.  c.  52, 
sect.  22. 

The  executors  and  other  persons  chargeable  with  duties  are  not 
only  authorized  to  deduct  the  duties,  but  also  any  expenses  occa- 
sioned by  the  refusal  of  the  legatees  to  allow  such  deduction.  By 
the  twenty-fourth  section  it  is  enacted,  that  if  the  persons  taking 
upon  themselves  the  execution  of  the  will  or  administration  of  the 
effects  of  the  deceased,  or  any  other  person  by  the  Act  made  chargea- 
ble with  duty,  shall  declare  themselves  willing,  and  offer  to  pay  any 
pecuniary  legacy  or  residue,  &c  deducting  the  duty  payable- there- 
on, or  offer  to  deliver  or  otherwise  dispose  of  any  specific  legacy  or 
property,  part  of  any  residue  or  personal  estate,  to  or  for  the  benefit 
of  the  persons  entitled  thereto,  or  to  any  trustees  for  such  persons, 
upon  payment  of  the  duty,  and  the  persons  entitled  to  such  legacy, 
&c.  or  the  trustees  for  such  persons,  shall  refuse  to  accept  such  offer, 
and  to  give  a  proper  discharge  for  such  legacy,  &c.  Or  so  much  as 
shall  be  offered  to  be  paid  or  otherwise  disposed  of,  then,  although 
no  actual  tender  shall  be  made,  if  any  suit  shall  be  afterwards  insti- 
tuted for  such  legacy  or  effects,  respecting  which  such  offer  has  been 
made  the  Court  in  which  such  suit  shall  be  instituted  shall  order  all 
the  costs  and  expenses  attending  the  same  to  be  paid  by  the  person 
so  refusing,  &c.  and  shall  order  such  costs,  &c.  to  be  deducted  and 
retained  out  of  such  legacy  and  effects,  together  with  the  duty  paya- 
ble thereon,  as  the  Court  shall  see  fit,  &c. 

C. — With  respect  to  the  tirrie,  at  which  such  deductions  and  pay- 
ments are  to  be  made. 

The  executors/ administrators,  or, other  persons  chargeable  with 
the  legacy  duty  are  subjected  to  penalties  if  they  pay  or  deliver  the 
legacy,  residue,  or  other  property  charged  with  duty,  to  the  persons 
entitled,  without  a  receipt  in  Writing  duly  signed  by  the  legatee,  and 
stamped  according  to  the  specifications  of  the  Acts  ;  and  no  receipt 
will  be  available  unless  stamped ;(/)  and  for  the  penalties  see  the 
Act.(g). 

The  receipt  must  be  dated  on  the  day  of  the  signing,  and  if  the 
duty  be  not  paid  by  the  executor,  administrator,  or  other  person 
chargeable  therewith,  within  twenty-one  days  after  the  date  of  the 
receipt,  a  penalty  is  incurred  of  1QL  per  cent,  on  the  amount  of  the 
duty  ;  and,  if  not  stamped  within  three  calendar  months,  a  further 
penalty  of  101.  per  cent,  on  the  amount  or  value  of  the  legacy,  resi- 
due, annuity,  or  other  property  chargeable  with  the  duty.(^) 

The  receipts,  however,  may  be  stamped  at  the  expiration  of  the 
three  months,  to  make  them  available  upon  payment  of  the  penal- 
ties.(i) 

The  Acts  do  not  specify  any  time  at  which  the  executor  or  ad- 
ministrator must  render  his  final  or  residuary  account  at  the  Stamp 
Office ;  for  the  obvious  reason,  that  the  peculiar  circumstances  of 
the  property  of  the  deceased  would,  in  very  many  cases,  preclude 

(?)  36  Geo.  3.  c.  52.  s.  13.         (/)  36  Geo.  3.  c.  52.  s.  27.         (e-)  Ib.  sect.  28. 
(A)  Ib.  and  sect  29.  (j)  48  Geo.  3.  c.  149.  s.  44. 


SECT.  II.]  Of  the  Payment  of  Legacies.  607 

the  possibility  of  complying  with  any  such  restriction.  But  it  be- 
comes the  interest  of  the  persons  entitled  to  the  residue,  to  expedite 
the  final  settlement  of  the  account,  since  the  duty  must  be  paid  on 
the  accruing  profits  and  income  of  the  effects  of  the  deceased,  from 
the  time  of  his  death  to  that  of  delivering  the  account  and  offering 
to  pay  the  duty  at  the  Stamp  Office. 

This  point  was  settled  in  the  case  of  the  Attorney  General  v.  Ca- 
vendish,(k)  in  that  case  Lord  F.  Cavendish  died  in  October,  1803, 
and  on  the  20th  of  July,  1SOS,  the  defendant,  as  executor  and  resi- 
duary legatee,  delivered  in  his  residuary  account  of  the  testator's 
personal  estate  intended  to  be  retained  by  him,  and  offered  to  pay 
the  duty  on  the  residuary  estate,  exclusive  of  the  interest  which  had 
accrued  since  the  testator's  decease,  324Z.  less  than  it  would  have 
been  had  the  duty  been  computed  on  the  interest  accrued.  And  it 
was  decided,  that  the  duty  was  payable  on  the  interest  accrued  from 
the  death  up  to  the  time  of  the  delivering  of  the  account. 

It  remains  to  offer  a  few  observations  on  the  subject  of  retainer 
under  the  Stamp  Acts.  And, 

First,  Where  the  executor  or  administrator  retains  a  legacy  or  re- 
sidue, &c.  under  the  said  Acts-for  his  own  benefit. 

The  statute,(/)  so  often  referred  to,  enacts,  that  where  the  execu- 
tor or  administrator  is  entitled  to  any  legacy,  or  to  the  whole  or  any 
part  of  the  residue,  he  shall  be  chargeable,  whenever  in  the  due 
course  of  administration  he  shall  be  entitled  to  retain  to  his  own  use 
any  part  of  the  personal  estate  of  the  deceased,  in  satisfaction  or  dis- 
charge of  his  legacy,  &c.  and  before  such  retainer,  shall  transmit  to 
the  Stamp  Office  a  note  containing  particulars  of  such  legacy,  &c. 
so  to  be  retained ;  and  in  case  he  shall  neglect  to  pay  the  duty  as- 
sessed by  the  commissioners,  within  fourteen  days  after  the  same 
ought  to  be  paid,  under  the  provisions  of  the  Act,  he  shall  forfeit 
treble  the  amount  of  the  duty. 

Secondly,  Where  the  executor  or  administrator  retains  for  the  be- 
fit of  another. 

W^hen  the  duty  can,  consistently  with  the  enactments  of  the  seve- 
ral Acts,  and  particularly  of  that  last  mentioned,  be  ascertained  and 
paid  by  the  executor  or  administrator,  it  is  usual  and  proper  to  pay 
it  when  the  legacy  is  retained,  although  the  time  of  payment  to  the 
legatee  has  not  arrived.  And  indeed  the  sixth  section  of  the  36th 
of  Geo.  3.  seems  to  contemplate  such  retainer  ;  and  the  executor, 
it  should  seem,  is  liable  to  be  called  upon  for  it,  since,  from  the  time 
of  retainer  it  becomes  a  debt  to^the  Crown',  although  no  penalties 
seem  to  accrue  until  after  payment  of  the  legacy  to  the  legatee. 

If,  for  instance,  a  legacy  of  1000/.  is  given  to  the  executor  upon 
trust  to  pay  it  to  rf.  at  twenty-one ;  the  executor,  upon  delivery  of 
his  final  account,  may,  it  should  appear,  pay  the  duty  at  that  time, 
or  he  may  retain  it,  and  account  for  it  as  retained  :  If  he  pay  it  then, 
of  course,  all  the  accruing  interest  would  from  that  time  belong  to 
the  legatee,  and  no  more  duty  would  be  payable  ;  but  if  he  retain  it, 
and  no  duty  is  paid  until  Jl.  attains  twenty-one,  the  duty  must  be 
paid  on  the  interest  accrued  from  the  death  of  the  testator  to  the 
time  of  payment  ;(m)  and  no  penalties  would  be  incurred  unless  the 

(£)  1  Wighw.  Rep.  82.  (0  36  Geo.  3.  c.  52.  sect.  35, 

(m)  Upon  the  'principle of  Att.  General  v.  Cavendish,  1  Wi%hw.  82.  above. 


608  Of  the  Payment  of  Legacies.  [Cn.  XIV. 

executor,  after  payment  of  the  legacy,  neglected  paying  the  duty 
within  the  time  prescribed  by  the  Acts, 

Jn  the  case  last  supposed,  it  is  at  the  option  of  the  executor  to 
pay  the  legacy  into  the  Bank  with  the  privity  of  the  Accountant 
General,  according  to  the  provision  of  the  statute. (n) 

In  cases  where  the  duty  cannot,  according  to  the  terms  of  the 
Acts,  be  paid  upon  the  delivery  of  the  executors  or  administrators 
final  account  at  the  Stamp  Office,  exceptions  are  made  in  the  ge- 
neral statement,  in  that  account  of  the  legacies  retained;  and  the 
duties  must  in  such  case,  be  paid  when  the  period  arrives  at  which, 
according  to  the  Acts,  the  duty  is  payable.  The  penalties,  how- 
ever, do  not  accrue  until  after  payment  to  the  legatee. 

By  way  of  illustration,  let  us  suppose  a  legacy  given  to  or  upon 
trust  for  A.  testator's  sister,  for  life,  after  her  death  to  B.  testator's 
child,  for  life;  and  after  the  death  of  A.  and  B.  to  C.  4  stranger, 
absolutely ;  and  A.  B.  and  C.  are  infants,  and  the  legacies  directed 
not  to  be  paid  until  twenty-one.  In  this  case,  the  duty  payable  at 
different  rates  must,  according  to  the  Act,  be  paid  by  J2;.and  B.  as 
if  the  interest  of  each  were'  an  annuity,  by  four  -instalments ;  and 
upon  that  of  C.  when  he  comes  into  possessipn*. 

The  executor,  upon  .making  up  his  final  account  cannot,  or  ad- 
mitting that  the  duty  might  be  then  computed,  he  is  riot  obliged, 
then  to  pay  the  duty  on  the  legacy,  but  only  to  account  for  it  as 
retained.  When  A.  attains  twenty  one,  the  duty  must  be  paid  on 
his  life  interest  by  four  instalments,  according  to  the  Act;  and  after 
his  death,  by  B.  in  like  manner;  and  after  the  death  of  A.  and  B. 
by  C.  within  the  period  prescribed  by  the  Acts,  after  the  receipt  of 
the  principal. 

We  proceed  to  consider, 

7.  Retainer  by  executors  or  administrators  generally. 

Where  a  person  entitled  to  a  legacy  is  indebted  to  the  testator, 
the  executors  may  retain  such  legacy,  either  in  part  or  full  satisfac- 
tion of  the  debt,  by  way  of  set-off. 

Thus  in  Jeffs  v.  Wood,(o)  Jeff's  by  his  will  gave  500Z.  to  his 
nephew  Wood  the  defendant;  and  appointed  the  plaintiff,  his  son, 
executor  and  residuary  legatee.  Wood  sued  "the  plaintiff  in  the 
Spiritual  Court,  for  his  legacy,  and  the  plaintiff  filed  his  bill  against 
Wood  the  defendant,  and,  after  the  bankruptcy  of  Wood,  against 
his  assignees,  claiming  an  allowance  out  of  the  legacy  for  monies 
which  the  bankrupt  legatee  owed  to  the  testator,  and  likewise  to 
the  plaintiff  the  executor.  It  was  determined  b^  Sir  Joseph  Jekyll, 
M.  R.  that  the  assignees  were  only  entitled  to  so  much  of  the  le- 
gacy as  remained,  after  deducting  what  was  due  to  the  testator,  and 
to  the  executor. 

In  the  recent  case  of  Ranking  \.  Barnard,  and  others,(/>)  a  simi- 
lar decision  was  made  by  Sir  John  Leach,  V.  C.  In  that  case, 
Sarah  Grave,  who  died  in  1815,  bequeathed  a  legacy  of  1000J.  to 
K.  F.  Ansley  the  wife  of  John  Ansley.  The  executors,  Barnard  and 
Earnshall,  two  of  the  defendants,  proved  the  will,  in  March  1816. 
Before  the  legacy  was  paid,  Ansley  became  bankrupt,  and  the 

fn)  36Geo.  3.  c.  52.  sect.  31.  ante,  p.  591,  (o)  2  P.  Will.  129. 

(/i)  5  Mad.  32. 


SECT.  II.]  Of  the  Payment  of  Legacies.  609 

plaintiffs  were  chosen  assignees.  Before  the  legacy  had  been  paid, 
K.  F.  rfnsley,  after  appointing  by  will  (in  exercise  of  a  power)  B. 
A.  Ansley  and  E.  R.  Comyn,  two  other  of  the  defendants,  her  ex- 
ecutors, died  in  1817.  The  assignees  filed  their  bill  against  the 
executors  of  Sarah  Grave,  for  the  legacy  to  K.  F.  Jlnsley:  The  ex- 
ecutors, by  their  answer,  stated  that  John  Ansley,  before  and  at 
the  issuing  of  the  commission,  was  indebted  to  the  testatrix  Sarah 
Grave  in  the  sum  of  27,OOOZ. ;  and  that,  as  jlnsley  was  entitled  in 
right  of  his  wife  to  the  legacy  of  1000Z.  they  were  authorized  to  set 
off  the  same,  as  far  as  it  would  extend,  or  retain  the  legacy  of  1000/. 
Sir  John  Leach,  after  noticing  the  case  of  Jeffs.v.  Wood,  observed, 
that  the  legatee  having  died  without  making  any  claim  to  a  provi- 
sion out  of  the  legacy,  it  was  discharged  of  her  equity,  and  the  le- 
gacy would  have  become  the  absolute  property  of  the  husband,  had 
there  not  been  any  bankruptcy ;  that  against  the  husband,  the  ex- 
ecutors of  Sarah  Grave  would  have  a  right  to  satisfy  the  legacy  by 
writing  off  so  much  of  the  debt  due  to  the  testatrix;  and  they  must 
have  the  sariie  right  against  the  assignees. (q)  The  bill  was  accord- 
ingly dismissed. 

The  preceding  rule  respecting  the  executor's  right  to  retain  the 
legacy,  in  satisfaction  of  the  legatee's  debt,  must  of  course  be  taken 
with  this  qualification,  that  the  testator  does  not  manifest  an  inten- 
tion, either  in  terms  of  the  bequest  or' in  other  parts  of , the  will,  to 
remit  the  debt  due  to  him  by  the  legatee.  The  mere  bequest  of  the 
legacy  however  is  not  of  itself  sufficient  manifestation  of  such  in- 
tention. See  the  last  observations  of  Sir  Joseph  Jekyll,  in- the  case 
ofJejfsv.  Wood.(r) 

The  next  subject  for  consideration  is, 

7.  The  presumptive  payment  of -legacies. 

Courts  of  Equity  are  never  active  in  extending  relief  to  stale  de- 
mands, except  upon  very  special  grounds.  Although  the  Statute 
of  Limitations  does  hot  bind  those  Courts  by  express  terms,  so  as  to 
enable  a  defendant  to  plead.it  in  'bar  to  a  suit  for  a  legacy  ;(*)  yet, 
for  the  sake  of  convenience,  they  have  adopted  its  provisions  by  ana- 
logy, in  many  instances  in  which  fraud  made  no  .ingredient.  Upon 
this  principle,  it  has  been  determined,  that  a  legacy  not  demanded 
for  forty  years  should  be  considered  primn  facie  as  satisfied :  but 
this  presumption  is  not  so  absolute,  as  to  support  a  demurrer  to  a 
bill  for  such  a  legacy ;  for  the  point  of  satisfaction  is  an  inference, 
only  arising  from  the  length  of  time  which  has  elapsed  from  the 
period  the  legacy  became  payable,  'and  which  may  be  repelled  by 
clear,  strong,  and  relevant  evidence.  If,  then,  the  merits  of  the  ques- 
tion were  allowed  to  be. decided  in  a  summary  way  upon  a  demurrer, 
the  legatee  would  be  precluded  from  the  opportunity  of  producing 
such  testinaony.(£) 

A.(u}  by  his  will  charged  all  his  estate  generally  with  the  payment 
of  debts  and  legacies.  The  bill  was  brought  by  the  second  husband 
of  a  legatee,  after  her  death,  against  those  in  possession  of  the  estate. 
It  was  resisted  on  the  ground  of  presumptive  payment,  arising  from 


(?)  See  also  Richards  v.  Richards,  9  Price,  E.  R.  219. 

(r)  See  also  Carey  v.  Goodinge,  3Bro.  C.  C.  110.  (s)  2  Ves.  jun.  571. 

(0  3  Bro,  C.  C.  633.  646.  (w).  Jones  v.  Tuberville.  2  Ves.  jun.  11. 


610  Of  the  Payment  of  Legacies.  [Cn.  XIV. 

the  length  of  time  which  had  elapsed  without  any  demand ;  which 
was  above  forty  years;  and  because  the  representatives,  both  real  and 
personal,  and  all  the  persons"who  could  throw  any  light  upon  the  ques- 
tion, were  dead.  The  plaintiff,  to  rebut  the  presumption,  proved 
that  one  legacy,  of  ten  guineas,  was  not  paid;  and  also  offered  to 
read  the  evidence  of  some  bond-creditors,  that  the  debts  due  to  them 
were  not  paid.  All  the  other  evidence  was  hearsay.  They  excused 
the  length  of  twne,  by  alleging  several  infancies  in  those  who  had 
possession  of  the  estate*  Lord  Commissioner  Eyre  remarked,  that 
it  was  a  presumption  of  fact  in  legal  proceedings  before  juries,  that 
claims  the  most  solemnly  established  upon  the  face  of  them,  would 
be  presumed  .to  be  satisfied,  after  a  certain  length  of  time.  He 
doubted  as  to  the  relevancy  of  the  evidence,  and  concurred  with 
Lord  Commissioner  Ashhurst,  in  thinking  that  the  Court  could  not 
entertain  their  suit,  which,  was  brought  forty  years  after  the  right 
accrued ;  but  that  since  the  original  demand  was  plain,  and  there  was 
no  positive  evidence  that  it  was  paid,  though  the  presumption  was 
that  way,  yet  there  was  -such  foundation  for  the  bill,  as  to  make  it 
not  a  c as. e  for  costs. 

In  the  case  x>f  Pickering  v.  Lord  Starnford,(&)  decided  by  Lord 
\fllvanley,  M.  R.  upon  a  claim  made  by  the  representative  of  one  of 
the  testator's  next  of  kin,  after  a  lapse  of  thirty-five  years,  tj>  such 
parts  of  the  testator's  residuary  estate  as  were  secured  upon  real  pro- 
perty, upon  the  ground  that  the  disposition  was  void  by  the  Statutes 
of  Mortmain, — his  Lordship"  acknowledged  the  propriety  of  the  de- 
cision of  the  Lords  Commissioners,  in  the  case  last  -stated,  and  said 
if  the  case  before  him  had  been  that  of  a  legacy,  he  woufd  have  been 
of  opinion  that  a  bar  had  arisen  from  the  length  of  .time  which  had 
elapsed,  upon  the  ground  -of  presumptive  satisfaction. 

And  it  should  seem  that  twenty  years  would,  by  analogy  to  the 
Statute  of  Limitations,  raise  the  presumption  of  payment  of  a  legacy. 

In  the  recent  case  of  Montresor  v.  Williams\(y}  which  came  be- 
fore Sir  John  Leach,  V.  C.  upon  exceptions  to  the  Master's  report, 
one  Duval  (a  lessee  under  a  lease  from  the  Portland  family  for 
ninety-nine  years  from  1765,)  by  his  will  charged  his  general  estate 
with  legacies;  subject  to  which  the  lease  passed  to  the  son -as  ex- 
ecutor and  residuary  legatee.  Duval,  the  son,  in  1806  granted  an 
under  lease,  which,  after  various  mesne  assignments,  came  to  Wigan, 
who  obtained  a  further  term  of  fourteen  years  from  Duval,  and  then 
assigned  the  under  lease  to  the  defendant,  who  contracted  with  Ge- 
neral Montresor,  the  plaintiff,  for  the  sale  of  the  leasehold  premises 
and  the  furniture.  Among  other  objections  to  the  title  referred  to 
the  Master,  it  was  insisted,  that  the  lease  being  charged  with 
legacies,  demands,  in  respect  of  these,  might  be  made  upon  the  pur- 
chaser. Releases  were  subsequently  procured.  When  the  cause 
came  on  upon  the  exceptions  to  the  Master's  report,  his  Honour 
said,  "These  releases  are  unnecessary.  The  vendor  has  no  right  to 
them.  Even  without  them  I  should  have  held,  that,  where  an  ex- 
ecutor twenty  years  after  the  death  of  the  testator,  sells  a  leasehold 
charged  by  the  will  with  legacies,  and  no  demand  has  during  all 

(x}  2  Ves.  jun.  272.     4  Bro.  C.  C.  214. 

(j/)  MSS.  1823.  March  3,  April  16,  and  May  7, 


SECT.  III.]        Of  the  Appropriation  of  Legacies.  611 

that  time  been  made  upon  it,  there  was  evidence  that  the  charges 
had  been  paid." 

But  in  the  case  of  Lee  v.  Brown,(z)  it  was  decided  that  a  legatee 
might  recover  a  legacy,  though  he  had  lain  by  for  ten  years  without 
making  any  claim. 

In  that  case,  the  facts  of  which  are -before  sta.ted,(a)  Edward 
Brown,  (the  executor  and  defendant)  insisted  that  the  legacy  of  100Z. 
was  satisfied,  and  stated  that  during  the  apprenticeship  of  the  plain- 
tiff, William  Brown  paid  him  eighteen  guineas,  besides  declaring 
that  he  would  afterwards  give  him  200Z.  to  set  him  up  in  business. 
There  was  evidence  of  declarations  by  William  Brown,  that  what 
he  had  advanced  for  the  plaintiff  was  so  done,  as  the  legacy  due  to 
him ;  and  the  defendant  admitted  assets.  The.  Master  of  the  Rolls 
said,  that  the  200J.  had  not.  been  received  in  satisfaction  of  the  lega- 
cy, of  100J, ;  and  the  question  then  was,  whether  the  Court  ought 
to  declare  the  plaintiff  still  entitled  to  his  legacy,  so  neglected  to 
be  called  fop  by  him  when  he  ought  to  have  called  for  it ;  and  ex- 
pressing his  disapprobation  of  the  demand,  his  Honour  observed, 
that  he  could  not  hold  it  satisfied,  and  decreed,  that  the  defendant 
should  pay  the  legacy  of  IQOl.  with  interest  from  the  time  of  filing 
the  bill,  at  the  rate  of  four  per  cent,  but. he  gave  no  costs  on  either 
side. 

We  may  here  observe,  that  legatees  will,  not  be  deprived  of  their 
legacies  (as  creditors  would  be  of  their  debts)  by  not  claiming  them 
within  the  time  limited  by  the  advertisements  published  under  a  de- 
cree of  the  Court  of  Equity. (6) 

SECT.  III.  Of  the  appropriation  of   Legacies  of  Money  or 

Stock. 

Although  legatees  are  not  entitled  to  receive  the  principal  of 
their  legacies  before  the  time  of  payment  arrives,  yet  where  the 
legacies  are  not  charged  upon  real  estate,(c)  they  are  entitled  to 
have  them  .either  appropriated  or  secured,  according  to  circum- 
stances. 

Little  is  to  be  met  with  in  the  books,  upon  the  subject  of  the  pre- 
sent section  ;  and  the  practice  of  the  Court  of  Chancery  respecting 
it  has  not  been  uniform.  But  the  cases,  after  stated  and  referred  to, 
seem  to  authorize  the  following  conclusions  : 

First,  where  a  legatee  has  a  vested  legacy  of  sterling  money  or 
of  stock,  whether  he  is  immediately  entitled  to  receive  the  whole  or 
only  a  portion  of  the  interest  or  annual  produce,  until  the  time  of 
payment  o/  the  principal  arrives,  he  is  entitled  (o  apply  to  the 
Court  of  Chancery,  to  have  the  legacy  separated  from  the  bulk  of 
the  testator's  personal  estate,  and  appropriated  by  investment  in 
the  three  per  cent,  consols  for  his  benefit,  until  the  payment  of.  the 
principal. (d)  ,  ; 

Secondly,  the  same  rule  obtains,  where  the  legatee  takes  only  a 
vested  life  or  other  less  estate  in  the  produce  of  a  legacy  of  money 
or  of  stock. (e) 

( z)  4  Ves.  362,  stated  suftra,  p.  593.     (a)  Ante,  593.     (6)  Anon.  9.  Price,  279. 
(c)  Gatvlerv.  Standerwick,  2  Cox,  Ch.  Car.  15.  sufira,  p.  436. 
(rf)  Green  v.  Pigot,  1  Bro.  C.  C.  103,  infra,  p.  612.     Carey  v.  Askew,  2  ib.  59. 
infra,  p.  &13.  (e)  Ib.  and  see  Webber  v.  Webber,  1  Sim.  &  Stu.  311. 


612  Of  the  Appropriation  of  Legacies.      [Cn.  XIV. 

So  also  Thirdly,  where  the  legatee  is  entitled  to  a  vested  lega- 
cy of  money  or  stock,  subject  to  the  life  interest  of  another  per- 
son. ('/) 

Fourthly,  where  a  legacy  in  .sterling  money  is  given  on  a  con- 
tingent event,  and  not  any  interest  payable  in  the  meantime,  there 
the  legatee  cannot  have  the  legacy  separated  from  the  bulk  of  the 
testator's  estate,  and,  strictly  speaking,  appropriated,  because  it  can- 
not be  ascertained  what  suni  of  stock  will,  at  the  time  of  payment, 
produce  'the  exact  amount  of  the  legacy  in  sterling  money  ;  and  in 
such  cases  it  is  the  practice  of  the  Court  of  Chancery  to  order  the 
fund  to  be  paid  to  the  person  entitled  to  the  residue,  he  giving  real 
security  to  th'e  legatee  Tor  the  payment,  when  the  contingency  hap- 
pens, (g] 

Fifthly,  the  same  rule  seems  to  apply,  for  the  same  reason,  to  a 
legacy  of  sterling  money  vested,  but  not  payable  until  a.  future  day, 
and  not  any  interest  payable  in  the  meantime ;  as  where  a  legacy  is 
given  to  A.  ten  years  after  testatrix's  death,  as  in  the  case  of  Ferrand 
v.  Prentice.(h)  But  where  security  cannot.be  given,  or  is  refused, 
the  only  alternative  seems  to  .be  to  have  the  money  paid  into  the 
Bank,  or,  in  other  words,  invested  in  the  three  per  cents.(i) 

But,  Sixthly,  where  a  contingent  or  future  legacy  is  given,  not  in 
sterling  money,  but  in  stock,  and  although  not  any  interest  is  pay- 
able in  the  meantime,  there,  it  should  see.m,  the  rule  is  otherwise, 
and  an  appropriation  will -be  directed;  because  the  reason  against 
appropriation,  before  stated  in  respect  of  a  legacy  of  sterling  money, 
does  not  apply,  since  the  actual  amount  of  the  stock  does  not  vary, 
though  its  market  .value  be  subject  to  fluctuation. 
To  proceed  with  the  cases. 

In  Green  v.  Pigot,(k)  A.  in  1775  devised  to  the  defendants  all 
his  real  estates,  in  trust  to  sell  and  stand  possessed  of  the  money  to 
arise  by  such  sale,  and  of  the  rents  and  profits  in  the  mean  time ; 
and  he  also  gave  to  them  his  personal  estates,  upon  trust  to  pay  his 
debts  and  funeral  expenses,  and  subject  thereto  to  pay  legacies 
amounting  to  40,OOOL  and  (among  them)  to  the  plaintiff  a  legacy 
of  5000Z.  He  directed  the  legacies  to  be  paid  to  the  respective 
legatees,  being  males,  at  twenty -one,  and,  being  females,  at  twenty- 
one  or  marriage,  which  should  first  happen,  with  interest  in  the 
meantime  not  exceeding  four  per  cent,  per  annum ;  and  if  the  leg- 
atees, being  females,  should  die  before  twenty-one  or  marriage,  or 
males,  before  twenty-one,  then  he  directed  that  the  legacies  should 
fall  into  the  residue,  which  he  gave  to  the  defendant  and  his  sister. 
The  testator  .died  in  1777,  leaving  the  defendants,  Sir  R.  Pigot, 
his  eldest  brother  and  heir  ;  and  the  defendants  proved  his  will. 
In  1780  the  plaintiff  (by  W.  'Greenher  father  and  next  friend)  filed 
her 'bill  against  the  defendants,  to  have  the  legacy  of  5000Z.  paid 
into  the  bank  of  England  in  the  name  of  the  Accountant  General, 
with  interest  at  four  per  cent,  per  annum,  from  the  death  of  the  te"s- 
tator,  till  such  payment  should  be  made,  to  be  placed  out  in  proper 

(/)  Pullen  v.  Smith,  5  Ves.  21.  infra,  p.  614.  Holland  v.  Hughes,  3  Mer.  685. 
infra,  p.  614.     Houghton  v.  Franklin,  1  Sign.  &  Stu.  390. 

(g)   Webber  v.  Webber     Ubi  supra.  (A)  Arab.  273. 

(j)  Ferrand  v.  Prentice,  stated  in  Green  v.  Pigot,  1  Bro.  C.  C.  105. 
(*)  1  Bro.  C.  C.  103. 


SECT.  III.]     Of  the  Appropriation  of  Legacies.  613 

funds,  or  to  have  the  same  secured  for  her  benefit,  and  that  the 
interest  of  the  legacy  might  accumulate  for  her  benefit  till  she  mar- 
ried or   attained  twenty-one,  and  in  the  mean  time  for  a  proper 
allowance  out  of  such  interest  for  her  maintenance  and  education. 
The  defendants,  by  their   answer,   admitted  assets ;  and  the  cause 
coming  on  to  be  heard  before  the  Master  of  the  Rolls,  he  referred 
it  to  the  Master  to  compute  interest  on  the  legacy  at  four  per  cent. 
from  the  end   of  one  year  after  the  testator's  death,  and  ordered 
that  the   produce  should  be  laid  out  in  the  purchase  of  Bank  three 
per  cent,  consolidated  annuities,  in  the  name  of  the  Accountant 
General,  upon  the   trusts  and  subject  to  the  contingencies  in  the 
testator's  will.      From  this  decree,   there  was  an  appeal  to  Lord 
Thurlow  (Chancellor ;)  who,  after  noticing  the  early  cases,  remarked, 
that  they  went  to  prove,  that  where  a  legacy  is  to  be  paid,  it  must 
be  secured.     He  did  not  see  a  distinction  as  to  its  being  contingent 
or  merely  future.  "  If  a  legacy  be  payable  at  twenty-one,  and  the 
child  die,  his  executor  cannot  claim  till  the  time  when  the  child 
would    have   arrived  at  twenty-one,    iFthe   legacy  does  not  bear 
interest ;  but,  if  it  be  with  interest,  he  may  claim  immediately.     If 
it  bear  a  less  interest  than  the  utmost  use,  the  executor  had  a  right 
to  the  use  of  the  money,  paying  the  modified  interest;   Chester  v. 
Painter  ;(l)  here,  he  did  not  incline  to  alter  the  decree  at  the  Rolls. 
The  legacy  was  to  a  child,  payable  at  twenty-one,  with  four  per  cent 
interest,  which  was  the  ordinary  interest  given  by  the  Court.     If 
the  interest  had  been   severed  from   the   principal,  he  must  order 
that  to  be  secured.     Giving  interest  even  at  two  per  cent  vested  the 
principal.     Whether  the  legacy  were  payable  at  a  fixed  or  a  con- 
tingent future  day,  the  effect  was  the  same  :  he  must  secure  the  in- 
terest of  the  fund.     If  the  interest  had  been  secured  as  an  allow- 
ance, he  must  secure  a  fund  equal  to  it.     The  Master  of  the  Rolls 
had  done  right  in  ordering  it  to  be  laid  out  in  the  funds ;  but  if  it 
should  produce  more  than  four  per  cent,  who  was  to  have  the  sur- 
plus •?  He  might  order  it  to  be  paid  to  the  executor.     But  should 
it  produce  less,  could  he  order  the  executor  to  make  it  up  *?  no  ;  he 
thought  therefore   the   produce  must  be  to  the  use  of  the  infant. 
Decree  affirmed. (m) 

In  the  case  of  Sitwell  v.  Bernard,(ri)  Lord  Eldon  says,  "  In  the 
appropriation  as  to  legacies  it  would  be  fit  to  consider,  whether  the 
necessity  of  appropriating  may  not  give  the  legatees  a  larger  interest 
than  is  given  by  the  will,  upon  Green  v.  Pigot ;  but  there  have 
been  other  cases  since,  in  which  it  has  been  held  not  to  be  the 
legitimate  effect  of  appropriation,  to  give  a  larger  interest  than  if 
there  was  no  appropriation." 

Again,  in  the  case  of  Carey  v.  Askew,(o)  B.  bequeathed  to  the 
plaintiff  15,000/.,  to  be  paid  at  twenty-one  or  marriage,  with  interest 
in  the  meantime ;  but  if  she"  died  before,  the  legacy  was  to  sink 
into  the  residue.  The  question  was,  whether  the  legacy  should  be 
appropriated,  and  interest  paid,  or  whether  interest  should  not  be 
raised  until  the  legacy  was  payable  *?  The  Master  of  the  Rolls  said, 

(/)  2  P.  Will.  336,  sufira,  583. 

(m)  See  also  Rock  v.  Hardman,  4  Madd.  253.  and  Webber  v.  Webber,  1  Sim. 
&  Stu,  311.  (n)  6  Ves.  543.  (o)  2  Bro.  C.  C.  59. 

vol..  i.  4  I 


614  Of  the  Appropriation  of  Legacies.       [CH,  XIV. 

that  if  there  had  been  no  directions  as  to  the  interest,  the  law 
was,  that  where  a  parent  gave  a  legacy  to  a  child  unprovided  for, 
the  child  should  have  interest  from  the  day  of  the  parent's  death ; 
but  in  the  case  then  before  him,  the  interest  must  pass  by  the  very 
words  of  the  will.  He  thought  the  money  must  be  immediately 
raised,  although  the  child  might  not  live  to  attain  twenty-one,  or  be 
married  ;  and  his  Honour  referred  to  the  last  case. 

To  illustrate  the  second  and  third  rules,  before  stated,  where  a 
previous  life  estate  is  given  in  the  legacy: 

In  Pullen  v.  Smith,(p)  Rowland  Fuller  by  his  will  gave  to  his 
niece  *flnn,  wife  of  Edward  Putten,  an  annuity  of  301.  a  year  for  her 
life,  for  her  sole  and  separate  use  ;  and  he  directed  his  trustees  and 
executors,  out  of  his  personal  estate,  to  purchase  so  much  stock  in  the 
three  per  cents  as  would  pay  the  said  annuity,  and  to  cause  the  same 
to  be  transferred  into  their  own  names  for  that  purpose ;  and  after  . 
the  decease  of  the  said  annuitant,  he  gave  the  principal  sum  which 
should  have  been  laid  out  for  securing  the  said  annuity,  to  the  eldest 
son  of  such  annuitant ;  and,  if  there  should  not  be  a  son,  to  the 
daughter  or  daughters  in  equal  shares,  if  more  than  one,  and  he  di- 
rected the  interest  to  be  applied  for  maintenance  :  the  testator  then 
devised  to  the  defendant  and  two  other  persons  and  their  heirs,  cer- 
tain real  estates,  upon  trust  to  sell ;  arid  he  declared  that  the  net 
money  to  arise  by  sale  of  his  real  estates  should  be  considered  as 
part  of  his  personal  estate,  and  he  appointed  the  trustees  his  exe- 
cutors. 

After  the  death  of  the  testator,  the  bill  was  filed  on  behalf  of  the 
only  child  ofrfnn  Pullen,  an  infant,  against  the  trustees  and  the  pa- 
rents of  the  plaintiff,  praying,  in  the  usual  manner,  that  the  trustees 
might  either  admit  assets  sufficient  to  purchase  so  much  stock  as 
would  produce  an  annual  income  sufficient  to  answer  the  annuity,  or 
that  an  account  might  be  taken  of  the  testator5?  personal  estate, 
debts,  &c.  and,  if  necessary,  an  account  of  the  rents  and  profits  of 
his  real  estates  received  by  the  said  defendants ;  and  that  the  will 
might  be  established,  and  the  estate  sold  with  the  necessary  conse- 
quential directions.  The  executors,  by  their  answer,  stated,  that 
there  was  then  standing  in  their  names,  upon  the  trusts  of  the  will, 
a  very  considerable  sum  in  the  three  per  cents,  and  the  whole  divi- 
dends and  interest  arising  therefrom  had  always,  since  the  decease 
of  the  testator,  been  half  yearly  paid  and  divided  among  the  persons 
entitled,  as  the  defendants  believed,  to  the  satisfaction  of  Jinn  Pul- 
len and  her  husband,  who  had  never  requested  any  separate  appropri- 
ation for  such  annuity ;  but  nevertheless  the  defendants  thereby 
consented  to  transfer  1000Z.  three  per  cents,  part  of  the  said  stock, 
as  a  specific  appropriation  to  secure  such  annuity,  and  the  legacy  to 
the  plaintiff.  The  exceptions  taken  in  the  answer  were  over-ruled ; 
and  the  counsel  for  the  defendants  consenting,  an  order  was  made 
as  upon  a  motion,  that  the  executors  admitting  assets  sufficient  for 
payment  of  the  annuity  and  legacy,  might  transfer  1000/.  three  per 
cents  into  the  name  of  the  Accountant  General,  to  that  account. 

In  Holland  v.  Hughes,(q)  William  Holland,  of  Calcutta,  by  his 
will  duly  executed,  &c.  bequeathed  to  Rebecca  his  wife  50,000  sicca 

(ft)  5  Yes.  21.  (5-)  SMerivale,  685.  5.  C.     16  Ves.  111. 


SECT.  III.]       Of  the  Appropriation  of  Legacies.  615 

rupees  for  her  life,  to  be  raised  out  of  the  bulk  of  his  property;  and 
after  her  death,  he  gave  the  said  principal  money  to  be  equally  di- 
vided among  his  children  by  his  said  wife,  who  should  survive  her, 
and  for  failure  of  children,  to  the  said  wife  absolutely.  Arid  after 
giving  several  other  legacies,  he  gave  all  the  residue  of  his  estate, 
real  and  personal,  to  his  wife  for  life,  and  after  her  death,  to  his 
children  as  before,  and  appointed  his  wife  and  Samuel  Holland  (one 
of  the  plaintiffs)  his  executrix  and  executor,  and  guardians  of  his 
children.  The  testator  died,  leaving  his  wife  and  one  only  child 
(the  infant  plaintiff)  by  his  marriage  with  her.  The  wife  alone 
proved  the  will  in  India,  and  collected  the  estate  ;  and  after  retain- 
ing the  legacy  of  50,000  sicca  rupees,  (which  she  placed  out  at  in- 
terest in  India,}  and  after  payment  of  the  testator's  debts,  and  the 
other  legacies  given  by  his  will,  invested  the  clear  residue,  amount- 
ing to  100,000  sicca  rupees,  in  India  bonds,  the  interest  of  which, 
as  well  as  of  the  50,000  legacy,  she  received  to  her  own  use,  and 
afterwards  came  to  England  with  her  child  (the  infant  plaintiff,) 
leaving  her  agent  in  India  to  collect  and  receive  any  outstanding 
property  of  the  testator's  there,  and  to  remit  the  interest  to  her  in 
England.  The  other  plaintiff  (who  was  the  executor  named  in  the 
will)  proved  in  England,  and  instituted  the  suit  in  the  names  of  him- 
self and  the  infant,  against  the  widow  (who  had  subsequently  mar- 
ried again)  and  her  husband,  for  an  account  and  administration  to 
have  the  amount  of  the  property  ascertained,  and  all  outstanding 
parts  of  it  called  in  and  remitted  to  England,  and  laid  out  and  in- 
vested under  the  authority  of  the  Conrt.  It  appeared  that  the  50,000 
sicca  rupees  legacy,  and  also  the  residue  of  the  estate,  so  far  as  it 
was  collected,  had  been  invested  on  securities,  yielding  a  rate  of  in- 
terest much  more  considerable  than  that  afforded  by  the  public 
funds  of  this  country  ;  and  upon  the  question  being  raised,  Sir  Wil- 
liam Grant,  M.  R.,  was  of  opinion,  that  the  widow  was  not  compel- 
lable  to  refund  the  excess  of  the  interest  which  she  had  hitherto  re- 
ceived above  that  which  would  have  been  produced  had  the  proper- 
ty been  immediately  invested  in  the  English  funds,  but  that  the  in- 
fant plaintiff,  being  in  this  country,  had  a  right  to  have  the  property 
remitted,  and  invested  in  the  three  per  cents,  in  the  name  of  the  Ac- 
countant General,  which  was  ordered  accordingly. 

The  fourth  rule  was  acted  upon  in  the  recent  case  of  Webber  v. 
Webber;(r)  and  the  fifth  and  sixth  seem  to  follow  from  the  determi- 
nation. In  that  case  William  Webber  gave  to  each  of  his  daughters 
10,OOOZ.  on  their  respective  marriages,  and  after  the  death  of  their 
mother,  an  annuity  of  1200Z.  equally  while  they  continued  unmar- 
ried, and  after  the  death  or  marriage  of  either,  the  survivor  after  the 
death  of  the  mother  was  to  have  an  annuity  of  800Z.  in  lieu  of  her 
moiety  of  the  annuity  of  1200Z.  so  long  as  she  continued  unmarried. 
One  of  the  daughters  married  in  testator's  lifetime  :  after  his  death 
a  suit  was  instituted  for  the  administration  of  the  testator's  personal 
estate  ;  and  the  Master  reported  all  the  debts  and  legacies  paid,  ex- 
cept the  10,0001  given  to  the  unmarried  daughter  Mary;  and  that 
16,000*.  three  per  cents,  part  of  the  funds  in  Court,  were,  according 
to  the  market  price  of  such  stock  on  that  day,  mentioned  in  the  re- 

(r)  1  Sim.  &  Stu.  31 L 


616  Of  the  Appropriation  of  Legacies.         [Cn.  XIV. 

port  of  the  value  of  10,000i.  That  sum  was  carried  to  Miss  Webber's 
account,  subject  to  the  contingencies  in  the  will  concerning  her  le- 
gacy. The  widow  died  ;  and  upon  the  petition  of  Miss  Webber,  in- 
sisting that  she  was,  in  the  events  that  had  happened,  entitled  to  an 
annuity  of  SOOZ.  an  order  was  made,  directing  two  sums  of  13,333J. 
three  per  cents,  part  of  the  funds  in  Court,  to  be  appropriated  to  an- 
swer the  annuity.  Upon  the  petition  of  other  parties  to  have  the 
sum  of  16,OOOZ.  carried  over  from  Miss  Webber' s  account  to  the  cre- 
dit of  the  cause  generally,  and  that  the  two  sums  of  13,333Z.  might 
be  declared  to  be  a  fund  for  answering  both  the  annuity  and  legacy, 
as  Miss  Webber  never  could  be  entitled  to  both  the  annuity  and  le- 
gacy :  Sir  John  Leach,  V.  C.  observed,  that  the  legatee  being  enti- 
tled to  receive  a  certain  sum  in  money,  when  the  event  of  her  mar- 
riage happened,  her  legacy  was  not  capable  of  being  secured  by  the 
present  appropriation  of  any  sum  of  stock.  And  he  decreed,  that 
the  residuary  legatee  should  receive  the  whole  fund  in  Court,  upon 
giving  security,  to  the  satisfaction  of  the  Master,  for  the  payment  of 
the  legacy,  if  the  event  happened :  and  that  the  legacy  might  be 
secured  upon  land,  if  the  residuary  legatee  had  land,  or  by  a  loan  of 
money  upon  land. 

When  the  appropriation  is  made  inpais  by  the  executors  or  trus- 
tees, the  whole  sum  must  be  properly  invested,  and  they  must  pro- 
ceed in  the  same  manner  as  the  Court  of  Chancery  would,  if  a  suit 
had  been  instituted  to  have  the  legacy  secured,  in  which  case  the 
appropriation  will  be  good;  but  if  they  act  otherwise,  they  will  not 
be  indemnified  in  making  the  appropriation,  although  they  may  have 
acted  bond  fide. 

In  Cooper  v.  Douglas,(s]  A.  bequeathed  40001.  to  his  cousin  S. 
Cooper,  a  co-plaintiff  with  her  husband,  to  be  paid  within  three  months 
after  her  marriage  ;  and  until  such  marriage,  interest  should  be  paid 
to  her  at  31.  per  cent. ;  and  appointed  E.  Wine  executrix.  In  1767, 
the  executrix  invested  40001.  in  the  purchase  of  44401.  stock,  and 
conveyed  the  same  to  trustees,  in  trust  to  pay  <S.  Cooper  4000Z.  with 
interest  at  31.  per  cent.,  and  the  surplus  interest  to  her,  the  executrix. 
The  legatee  afterwards  intermarried  with  the  co-plaintiff  Cooper, 
and  the  stock  turning  out  not  equal  in  value  to  the  4000?.,  they  filed 
the  bill,  stating  the  marriage  and  a  settlement  previous  to  it,  and 
that  the  stock  purchased  was  not  equal  in  value  to  the  legacy,  and 
praying  that  Gibbons,  the  husband  of  the  executrix,  who  was  then 
dead,  might  pay  to  the  trustees  in  the  settlement,  the  difference  be- 
tween the  present  value  of  the  stock  purchased,  and  the  40001.  lega- 
cy. The  question  was,  whether  the  laying  out  the  money  in  -the 
funds  and  conveying  the  same  to  trustees  for  the  benefit  of  the  lega- 
tee, was  a  valid  appropriation,  binding  upon  the  plaintiffs  9  And  it 
was  decreed,  that  the  stock  purchased  should  be  transferred  to  the 
Accountant  General,  in  trust,  in  the  cause,  in  part  satisfaction  of  the 
legacy  of  4000Z. ;  and  it  was  referred  to  the  Master  to  take  an  ac- 
count what  would  remain  due  to  the  plaintiffs  after  such  transfer,  for 
principal  and  interest  of  the  said  legacy.  The  Master  made  a  re- 
port, and  the  cause  stood  over,  in  order  that  it  might  be  re-heard  on 
the  point  of  the  validity  of  the  appropriation.  The  Lord  Chancellor 

(a)  2  Brown,  C.  C.  232. 


SECT.  III.]        Of  the  Appropriation  of  Legacies.  617 

(Thurloiv)  said,  The  question  was,  whether  the  legacy  had  been 
taken  out  of  the  testator's  property  1  The  uses  declared  by  the 
deed  had  been  expressly  to  pay  the  legatee  4000/.  with  interest  at 
31.  per  cent.,  and  to  pay  the  residue  of  the  interest  to  the  executrix. 
If  a  legatee  had  the  legacy  anticipated,  he  must  stand  or  fall  by  it; 
but  then  he  must  have  the  whole  sum.  When  the  Court  appropria- 
ted a  legacy,  it  ordered  a  sum  equal  to  the  legacy  to  be  laid  out ; 
but  he  (Lord  Thurloiv)  did  not  remember  any  case,  in  which  the 
Court  had  done  so,  and  given  any  part  of  the  intermediate  interest  to 
another  person.  The  executrix  could  not  take  the  surplus  interest. 
The  money  must  remain  in  Court,  subject  to  the  application  of  the 
parties,  and  it  must  be  referred  to  the  Master,  to  inquire  into  the 
settlement,  and  to  whom  it  should  belaid. 

In  Hutcheson  v.  Hammond,(t]  Frances  Hutcheson,  in  exercise  of 
a  power  reserved  to  her  in  her  marriage  settlement,  by  her  will  ap- 
pointed trustees  to  sell  certain  estates,  and  after  certain  deductions, 
to  lay  out  the  residue  of  the  money  in  the  funds,  and  to  permit  her 
husband  William  Hutcheson  to  receive  the  interest  for  his  life,  and 
after  his  death  to  pay  to  the  plaintiff,  Ann  Jones,  in  certain  events 
(.which  happened)  three  sums  of  1500Z.,  1500J.  and  500L;  and  she 
appointed  her  husband,  William  Hutcheson,  executor  and  residuary 
legatee.  By  a  codicil,  the  testatrix  declared,  that  if  Ann  Jones 
should  marry  in  the  lifetime  of  William  Hutcheson,  without  his  con- 
sent, then  the  three  sums,  should  go  according  to  the  appointment 
of  William  Hutcheson.  After  the  testatrix's  death,,  the  trustees  sold 
the  estate  for  6500Z.  and  after  certain  deductions,  a  residue  of 
6252J.  6s.  2d.  remained  in  their  hands.  They  invested  2695/.  in 
the  purchase  of  4900i.  three  per  cents,  but  kept  back  3500L,  to  be 
invested,  to  answer  the  amount  of  the  legacies  given  to  Ann  Jones, 
subject  to  her  father's  life  interest,  in  case  they  should  be  justified 
in  so1  doing.  The  plaintiff,  William  Hutcheson,  made  several  appli- 
cations to  Peter  Hammond,  the  acting  trustee,  to  invest  the  3500Z.  in 
the  funds  ;  and  the  result  was,  that  it  was  laid  out  in  the  purchase  of 
6400?.  three  per  cents,  of  which  notice  was  given  by  Hammond  to 
Hutcheson,  but  not  any  declaration  of  the  trusts  was  made.  The 
plaintiffs,  P.  Jones  and  Ann  Jones  intermarried,  she  having  first  duly 
obtained  in  writing  the  consent  of  her  father.  By  settlement  made 
prior  to  the  marriage,  it  was  agreed,  that  their  proportionable  share 
of  the  stock  should  be  assigned  to  trustees,  to  the  uses  of  the  mar- 
riage. The  bill,  among  other  things,  prayed  it  to  be  declared,  that 
the  trustees  of  the  marriage  settlement  of  P.  Jones  and  Ann  his  wife, 
were  entitled  to  the  three  per  cent,  annuities,  purchased  with  the 
3500Z.  upon  the  trusts  of  such  settlement,  and  that  the  stock  might 
be  transferred  to  them.  Judge  Buller  stated  the  question  to  be,  first, 
whether  the  sum  could  have  been  appropriated  by  the  trustees  9 
And  if  so,  secondly,  whether  what  had  been  done  amounted  to  an 
appropriation  ?  And  thirdly,  if  it  could  be  then  paid  to  the  trustees 
of  Ann  Jones's  settlement?  And  he  decided  that,  even  in  contingent 
interests,  any  person  interested  might  come  and  have  the  fund  ap- 
propriated ;  and  that  if  the  Court  would  have  appropriated  the  fund, 
the  trustees  were  justified  in  doing  it,  without  its  intervention  ;  and 

(0  3  Bro.  C.  C.  128.  144. 


618  Of  the  Appropriation  of  Legacies.       [Cn.  XIV. 

that,  in  that  case,  the  trustees  had  made  the  appropriation;  and  that 
it  might  then  be  paid  to  the  trustees  of  Jinn  Jones's  settlement,  with 
the  consent  of  the  father.  The  cause  was  re-heard  before  Lord 
Thurlmv,  who  affirmed  the  decree. 

In  the  case  of  Hancom  v.  Allen,(u}  the  bill  was,  to  have  some  trust 
money  laid  out  pursuant  to  the  trusts  of  a  deed  bearing  date  1740. 
The  trust  money  had  been  laid  out  by  the  trustees,  in  the  funds, 
which  sunk  in  .their  value,  without  any  mala  fides;  but  the  same  not 
being  laid  out  in  the  funds  in  which  the  Court  directs  trust  money  to 
be  laid  out,  the  trustees  were  ordered  to  account  for  the  principal, 
and  to  pay  it  into  the  Bank,  and  then  that  it  should  be  laid  out  in 
Bank  three  per  cent,  annuities. 

In  the  last  case,  that  of  Trajford  v.  Boehm,(w)  before  Lord  Hard- 
wicke,  was  cited ;  in  which  a  trustee  laid  out  trust  money  in  the 
South  Sea  annuities,  which  afterwards  sunk  in  their  value.  It  was 
considered  as  a  departure  from  the  trust,  and  the  Lord  Chancellor 
ordered  the  deficiency  to  be  made  up ;  and  as  to  the  manner  of 
making  it  good,  he  observed,  that  it  must  first  come  out  of  the  estate 
of  a  cestui  que  trust,  who  consented  to  the  investment;  the  rule  of 
the  Court  being,  that  if  a  trustee  err  in  the  management  of  the  trust, 
and  is  guilty  of  a  breach,  yet  if  he  goes  out  of  the  trust  with  the  ap- 
probation of  cestui  que  trust,  it  must  be  made  good  first  out  of  the 
estate  of  the  person  who  consented  to  it.  See  also  the  case  of  Jldie 
v.  Fennilitteau,  in  note  to  the  last  case. (a:) 

In  Peat  v.  Crane,(y]  before  Lord  Thurlow,  C.  the  trustee  laid  out 
trust  money  in  three  per  cents.,  the  fund  the  Court  adopts  with  a 
view  to  benefit  the  trust,  so  that  it  might  not  lie  unproductive.  The 
three  per  cents,  afterwards  sunk  in  their  price ;  the  trustee  claimed 
an  allowance  for  what  he  had  so  laid  out.  His  Lordship  at  first 
doubted  as  to  making  the  allowance,  but  after  consideration,  was  clear 
he  was  entitled  to  an  allowance,  according  to  the  price  at  which 
the  annuities  were  purchased. (z] 

As  to  the  effect  of  appropriation  upon  the  fund  itself. 

When  the  appropriation  is  once  duly  made,  whether  by  the  direc- 
tion of  the  Court  or  by  the  executors  or  trustees  in  pais,  according 
to  the  rules  of  the  Court,  the  rule  appears  to  be,  that  the  legatees 
entitled  to  the  legacy  for  which  the  appropriation  was  made,  must 
take  it  subject  to  its  chances  of  fluctuation.  For  example,  in  the 
case  of  Burgess  v.  Robinson,(a)  the  facts  of  which  are  before 
stated, (6)  the  testator  gave  three  legacies  of  200Z.  each  to  his  three 
nephews,  in  the  event  of  their  claiming  them  within  three  years,  in 
the  manner  therein  specified;  and  in  the  event  of  their  not  making 
such  claim,  he  directed  that  500Z.  part  of  the  said  three  legacies 
should  sink  into  the  residue  of  his  personal  estate ;  and  he  gave  the 
residue  to  his  wife  the  plaintiff,  and  appointed  the  defendants  execu- 
tors of  his  will.  When  the  case  came  on  for  further  directions,  it 
was  decreed,  that  the  500Z.  should  be  raised  out  of  the  estate,  with 

(«)  2  Dickens,  498.  (w)  3  Atk.  440. 

(.r)  Reported  in  1  Cox.  24.  as  Adye  v.  Feuilleteau. 
(y)  Note  by  Dickens  to  the  case  of  Hancom  v.  Alien. 

(z)  And  see  franklin  v.  Frith,  3  Bro.  C.  C.  434.  1  Cox,  24.  3  Dow.  128.  Howe 
v.  Lord  Dartmouth,  7  Ves.  151.    Holland  v.  Hughes,  16  Ves.  114 
(a)  3  Mer.  7.  (A)  p.  515. 


SECT.  III.]        Of  the  Appropriation  of  Legacies.  619 

interest  at  41.  per  cent,  from  the  end  of  three  years  after  the  death 
of  the  testator.  It  afterwards  appearing  that  the  5001.  had  already 
been  paid  into  Court,  and  laid  out  in  the  purchase  of  stock,  in  pur- 
suance of  an  order  made  on  the  motion  of  the  defendant,  the  cause 
was  again  spoke  to,  on  the  minutes.  The  plaintiff  claimed  to  be 
entitled  to  the  stock  and  the  dividends  which  had  accrued  thereon, 
and  likewise  to  interest  at  41.  per  cent,  upon  the  principal  sum  of 
5001.  from  the  expiration  of'three  years  after  the  testator's  death  to 
the  time  of  the  investment ;  the  defendant,  on  the  other  side,  repre- 
senting that  as  the  money  had  been  so  paid  in  and  invested  upon 
his  application,  the  plaintiff  not  having  appeared  or  consented  there- 
to, he  (the  defendant)  would  have  been  liable  to  make  good  the 
principal  sum,  in  case  of  loss  by  the  fall  of  stock,  and  ought  there- 
fore to  be  held  entitled  to  the  advantage  which  had  accrued  from 
their  rise  subsequent  to  the  investment ;  insisting,  consequently,  that 
the  stock  ought  to  be  sold,  and  that,  out  of  the  produce  thereof,  to- 
gether with  the  dividends  accrued  due  thereon,  the  plaintiff  should 
be  paid  the  5001.  with  interest  as  aforesaid.  But  Sir  William  Grant 
held,  that  the  investment  of  the  money  was  an  appropriation,  by 
which  all  parties  were  bound,  and  therefore  that  the  stock  belonged 
to  the  plaintiff.(c) 

The  recent  case  of  Davies  v.  fVattier(d)  may  be  here  noticed, 
which  at  first  sight  might  appear  at  variance  with  the  rule  last  stated ; 
but  it  was  decided  upon  the  general  construction  of  the  will.  John 
Beard,  by  his  will,  gave  his  wife  Lydia  Beard,  2001.  a  year  for  her 
life,  and  bequeathed  the  residue  of  his  personal  estate  to  the  defen- 
dants Wattier,  Goldicutt,  and  Thomson,  to  invest  it  in  the  funds,  and 
pay  thereout,  in  the  first  place,  the  annuity  to  his  wife  ;  and  he  direct- 
ed them  to  divide  the  residue  of  the  dividends  equally  among  his 
nephews  and  nieces  living  at  his  death,  and  after  his  wife's  death  to 
transfer  the  principal  to  such  of  his  nephews  and  nieces  as  should  be 
then  living;  and  he  appointed  the  defendants  his  executors.  By  a  de- 
cree made  at  the  hearing,  the  executors  were  ordered  to  transfer 
4000Z.  navy  five  per  cent,  annuities,  and  53001.  three  per  cent.  Bank 
annuities,  unto  the  name  of  the  Accountant  General,  in  trust,  &c.  ; 
and  out  of  the  dividends  to  pay  the  annuity  of  2001.  from  time  to  time 
to  the  widow.  The  funds  were  transferred  accordingly.  On  the  hear- 
ing for  further  directions,  the  interests  of  some  of  the  other  parties  to 
the  suit  were  declared  in  a  sum  of  43491.  14s.  8d.  Bank  three  per 
cents,  standing  in  the  Accountant  General's  name,  which  appears  to 
have  been  the  residue  of  the  53QO/.  Bank  three  per  cents,  after  costs 
had  been  deducted ;  and  the  dividends  of  the  sum  of  4849Z.  15*.  8d. 
Bank  three  per  cents  were  directed  to  be  paid  to  them  accordingly. 
By  the  3  Geo.  4.  c.  9.  the  navy  five  per  cents  were  converted  into  new 
four  per  cents,  and  the  sum  of  40001.  navy  five  per  cents  was  converted 
into  42001.  new  four  per  cents.  The  dividends  thus  being  insufficient 
to  meet  the  annuity,  Mrs.  Beard  petitioned  that  the  deficiency  might 
from  time  to  time  be  made  up  out  of  the  dividends  of  the  sum  then 
in  the  three  per  cents  ;  the  petition  was  opposed,  on  the  ground,  that 
the  sum  of  40001.  five  per  cents  being  appropriated  with  Mrs.  Beard's 

(c)  See  also  Green  v.  Pigot,  1  Bro.  C.  C.  105.    Rock  v.  ffardman,  4  Madd.  253. 

(d)  1  Sim.  &  Stu.  463, 


620  Mashalling  of  .Assets.  [Cn.  XV. 

consent  for  securing  her  annuity,  she  must  abide  by  the  loss  occa- 
sioned by  the  conversion  into  four  per  cents.  Sir  John  Leach,  V.  C. 
said,  that  the  appropriation  of  the  4000L  five  per  cents  was  not  the 
act  of  the  petitioner,  but  was  the  act  of  the  Court,  and  that  as  the 
annuity  was  a  charge  upon  the  whole  of  the  residue,  the  petitioner 
was  entitled  to  have  the  deficiency,  which  had  been  occasioned  by 
the  conversion  of  the  stock,  supplied  out  of  the  other  funds  in  the 
cause. 

The  Reader  will  observe,  that  the  nephews  and  nieces  were  by 
the  will  entitled  only  to  the  residue  of  the  produce  of  the  testator's 
personal  estate,  afterpayment  of  the  annuity  ;  and  upon  this  ground 
the  decree  in  favour  of  the  annuitant  was  made. 

But  where  an  investment  in  the  funds  is  directed  of  a -legacy,  and 
the  trustee,  after  retainer  or  receipt  of  the  legacy,  fails  to  invest  the 
legacy  in  stock,  he  must  suffer  for  his  neglect ;  and  in  case  of  in- 
crease in  the  value  of  the  funds  in  which  the  legacy  is  to  be  invest- 
ed, he  must  nevertheless  purchase  so  muqh  stock  as  the  legacy 
would  have  produced  at  the  period  of  retainer  or  payment. 

Thus  in  the  case  of  Byrchall  v.  Bradford,(e)  an  executor  was 
constituted  a  trustee  as  to  a  legacy  of  120UZ.  He  accounted  for  the 
residuary  estate,  and  retained  the  amount  of  the  legacy.  The  will 
directed  it  to  be  invested  in  the  funds;  and  the  question  in  the 
cause  was,  whether  the  cestui  que  trust  of  the  legacy  were  now  en- 
titled to  claim  against  the  executor  as  much  stock  as  the  1200L 
would  have  produced,  if  invested  at  the  time  of  the  settlement  with 
the  residuary  legatee. 

The  stocks  had  risen  in  the  meantime,  and  the  executor  had 
never  invested  the  legacy. 

Sir  John  Leach,  V.  C.  observed;  "  Generally  speaking,  this  Court 
does  not  enter  into  the  consideration  whether  the  executor  could  or 
not  at  an  earlier  period  have  invested  a  stock  legacy,  but  directs  it 
to.be  invested  by  its  decree.  But  in  the  particular  case,  this  ex- 
ecutor was  in  the  situation  of  another  trustee,  to  whom  a  legacy  is 
paid  upon  trust  to  invest  it.  His  retainer,  after  accounting  for  the 
residuary  estate,  is  equivalent  to  the  payment  of  another  trustee. 
If  the  eestui  que  trust  sustained  a  loss  by  the  trustee  neglecting  his 
duty  to  invest,  he  has  a  right  to  charge  the  trustee  with  the  loss." 

In  this  case,  however,  it  was  suggested,  that  the  cestui  que  trusts, 
who  were  all  of  age,  had  consented  to  the  delay  of  investment,  and 
Sir  John  Leach,  V.  C.  directed  an  inquiry  as  to  that  fact. 


CHAPTER  XV. 

Of  marshalling  Assets  in  favour  of  Legatees. 

WHERE  a  person  dies,  leaving  assets  subject  to  various  claims,  it 
is  an  object  of  equitable  jurisdiction  to  make  such  an  arrangement 
in  the  distribution  of  those  assets,  consistently  with  the  nature  of 
the  respective  claims,  as  shall  best  satisfy  the  just  demands  of  all 
claimants  :  consequently  it  has  been  a  rule  of  the  courts  of  equity, 
in  the  exercise  of  this  jurisdiction,  that  where  one  claimant  has  more 

0?)  6  Mad.  13. 


SECT.  1.]  Marshalling  of  Assets.  621 

than  one  fund  to  resort  to,  and  another  claimant  only  one,  the  for- 
mer claimant  shall  resort  to  that  fund  upon  which  the  latter  has  not 
any  lien. (a)  Consistently  with  this  rule,  it  is  settled,  that  where  a 
specialty  creditor,  whose  debt  is  a  lien  on  the  real  assets,  receives 
satisfaction  out  of  the  personal  assets,  a  simple  contract  creditor 
shall  stand  in  the  place  of  the  specialty  creditor,  against  the  real 
assets  in  satisfaction  of  his  debt. (6)  A  similar  exercise  of  jurisdic- 
tion is  extended  to  legatees ;  but  before  they  can  claim  the  advan- 
tages resulting  from  this  equitable  administration,  certain  prelimi- 
naries are  requisite  :  The  real  estate  must  be  charged  with  debts, 
or  with  the  payment  of  one  or  more  legacies ;  or,  where  there  is  not 
any  such  charge,  the  creditor  must  have  a  specific  lien  upon  the 
estate  ;  or  if  there  be  not  any  such  charge  or  specific  lien,  yet  where 
the  real  estate  descends  to  the  heir,  the  legatees  will  be  permitted 
to  throw  the  general  bond  debts,  which  are  only  a  general  lien,  upon 
the  realty,  in  exoneration  of  the  personal  estate.  But  where  the  real 
estate  does  not  descend  to  the  heir,  but  is  devised,  the  rule  is  other- 
wise. In  administering  this  equity,  certain  other  subordinate  rules 
are  adopted  by  the  Court,  which  it  is  here  unncessary  to  antici- 
pate. It  is  therefore  proposed  to  discuss  the  doctrine  of  marshall- 
ing Assets,  so  far  as  it  respects  Legacies, under  the  following  heads: 

SECT.  I.  The  marshalling  of  assets  in  favour  of  legatees. 

1. — Where  the  real  estate  is  devised  subject  to  payment  of 

debts. 

2. —  When  subject  to  a  charge  of  one  or  more  legacies. 
3. —  When  charged  with  both  debts  and  legacies. 

SECT.  II.  The  marshalling  of  assets  in  favour  of  legatees,  where 
the  real  estate  is  not  charged  by  the  will  with  debts 
or  legacies,  but  there  is  a  specific  lien  on  the  real  esr 
tate.  And 

1. — Where  that  real  is  devised. 
2. —  Where  it  descends. 

SECT.  III.  The  marshalling  of  assets  in  favour  of  legatees,  where 
the  real  estate  is  neither  charged  with  debts  nor  le- 
gacies, nor  subject  to  a  specific  lien,  but  there  is 
merely  a  general  lien  on  the  real  estate,  which  de- 
scends to  the  heir. 

SECT.  IV.  Exception,  where  the  estate  is  devised  ;  for  where 
the  real  estate  is  neither  charged  with  debts  nor  lega- 
cies, nor  subject  to  a  specific  lien,  but  there  is  only  a 
general  lien,  and  the  real  estate  is  specifically  devised 
to  a  stranger  or  to  the  heir  taking  as  a  devisee,  assets 
are  not  marshalled  in  favour  of  a  general  legatee  ;  but 
the  rule  appears  otherwise  in  favour  of  a  specific 
legatee,  s.  q. 

(a)  Lanoy  v.  Duke  of  Athol,  2  Atk.  446. 

(A)  Galtonv,  Hancock,  2  ib.  436.     Lacamv.  Mcrtins,  1  Ves.  sen.  512. 
VOL.  I.  4  K 


622  Marshalling  of  Assets.  [Cn.  XV. 

SECT.  V.  The  extent  to  which  equity  will  permit  legatees  to 

stand  in  the  place  of  specialty  creditors. 
SECT.  VI.  The  consideration  of  those  legatees  for  whom  a  Court 

of  Equity  will  not  marshal  assets. 
1 . —  Where  the  legatees,  at  the  time  of  their  legacies  becoming 

due,  have  not  an  established  claim,  &c. 
2. —  Where  the  legacies  are  given  to  charities. 
3. — The  rule  respecting  contribution  between  charities  and 
the  next  of  kin,  where  the  residue  is  given  to  cha- 
rities, and  part  of  the  disposition,  being  within  the 
Statute  of  Mortmain,  fails  for  the  benefit  of  the  next 
of  kin. 

SECT,  VII.  The  mode  in  which  equitable  assets  are  distributed 
among  legatees. 


SECT.  I.  Assets  marshalled  in  favour  of  legatees. 

1st. — Where  the  real  estate  is  charged  with  the  payment  of  debts, 
In  the  case  of  Foster  v.  Cook,{c)  Henry  Cook  being  seised  and 
possessed  of  freehold  lands,  leasehold  and  other  personal  estates,  de- 
vised them  to  trustees,  to  pay  an  annuity  to  his  wife  during1  widow- 
hood, and  subject  thereto,  to  and  for  the  benefit  of  the  child  with 
which  his  wife  was  then  pregnant  (and  which  was  afterwards  still- 
born,) with  remainder  to  his  five  cousins  by  name,  in  fee,  if  such  child 
died  without  leaving  issue.  The  testator,  among  other  legacies,  gave 
the  plaintiff  Foster  lOOl.  and  directed  his  trustees  to  possess  them- 
selves of  all  his  estates  and  substance,  and  improve  the  same  for  the 
benefit  of  his  said  child,  and  to  pay  all  his  just  debts,  &c.  The  tes- 
tator made  a  codicil  to  his  will,  and  gave  to  his  wife  2Ql.  and  ano- 
ther legacy ;  and  in  case  of  any  overplus,  after  payment  of  all  his 
just  debts  and  legacies  out  of  his  stock  and  personal  estates,  he  or- 
dered it  to  be  divided  into  two  parts,  and  gave  one  moiety  to  his 
wife,  and  the  other  to  the  plaintiffs,  over  and  above  their  legacies. 
The  trustees  filed  the  bill,  praying,  among  other  things,  an  account 
of  the  personal  estate,  and  in  case  it  should  be  insufficient  to  pay 
funeral  expenses,  debts,  and  legacies,  that  a  sufficient  sum  might 
be  raised  out  of  the  real  estates  to  make  good  the  deficiency.  To 
this  it  was  objected,  that  with  respect  to  the  charge  of  debts,  there 
was  not  sufficient,  in  this  case,  to  make  a  charge  upon  the  real  es- 
tate ;  it  was  only  a  discretionary  power  to  raise  out  qf  the  personal- 
ty sufficient  to  pay  the  'debts  ;  the  testator  clearly  meant  the  person- 
alty only  to  be  liable  ;  that  there  was  no  case,  where  the  real  estate 
had  been  devised,  in  which  the  Court  had  marshalled  the  assets. 
Lord  Thurlow,  C.,  observed,  "  With  respect  to  the  charge  for  pay- 
ment of  debts,  he  (the  testator)  directed  the  trustees  to  possess  them- 
selves of  all  his  estate  and  substance,  to  pay  debts;  it  is  a  most  di- 
rect charge,  and  the  legatees  must  come  upon  the  real  estate,  so  far 
as  the  personalty  has  been  applied  in  payment  of  debts." 

In  the  case  of  Bradford  v.  Foley,(d)  Tempest  Hay,  after  directing 
all  his  debts  and  funeral  expenses  to  be  paid,  devised  all  his  real 

(c)  3Bro.  C.  C.  347.  (d)  3  Bro.C.  C.  351.  note. 


SECT.  I.]  Marshalling  of  Assets.  623 

estates  to  trustees,  to  the  use  of  his  son  for  life,  remainder  to  his 
first  and  other  sons  by  any  future  marriage  in  tail  male,  with  several 
remainders  over.  The  testator,  after  giving  divers  legacies,  directed 
the  residue  of  his  personal  estate  to  be  laid  out  in  Government  se- 
curities, in  the  names  of  his  executors,  to  be  settled  and  applied  to 
the  same  uses  as  his  real  estates.  By  the  decree  upon  the  hearing 
of  the  case,  the  will  was  established;  and  it  was,  among  other 
things,  ordered,  that  the  personal  estate  of  the  testator  should  be 
applied  in  payment  of  his  debts,  funeral  expenses,  and  legacies,  in 
a  course  of  administration ;  and  in  case  the  personal  estate  should 
not  be  sufficient  to  pay  his  debts,  funeral  expenses,  and  legacies,  it 
was  declared  that  the  real  estate  was  subjected  by  the  will  to  the 
amount  of  the  debts  and  funeral  expenses ;  that  the  whole  or  a  suf- 
ficient part  of  the  real  estate  should  be  sold,  and  the  money  applied 
in  making  good  the  deficiencies ;  and  in  case  any  of  the  creditors 
had  received  any  thing  out  of  the  personal  estate  towards  satisfaction 
of  their  demands,  then  they  were  not  to  receive  any  part  of  the 
money  arising  from  the  sale,  till  the  other  creditors  were  paid  up 
equal  with  them.  The  estate  had  been  sold,  and  the  personal  estate 
not  being  sufficient  for  payment  of  debts  and  legacies,  they  were 
ordered  to  be  paid  out  of  the  money  produced  by  the  sale  of  the 
real  estate. (e) 

In  the  case  of  Webster  v.  JLlsop,(f]  John  Taylor,  by  his  will,  di- 
rected all  his  just  debts  and  funeral  expenses  to  be  paid  out  of  his 
personal  estate ;  and  if  his  personal  estate  should  not  be  sufficient, 
he  charged  his  real  estate  with  so  much  .thereof  as  his  personal  es- 
tate would  not  extend  to  pay ;  and  then  devised  his  real  estates  to 
trustees,  subject  to  annuities  and' other  payments,  to  the  use  of  the 
plaintiff  for  life,  with  the  remainders  over  j  and  he  gave  several  le- 
gacies. The  personal  estate  proving  deficient,  it  was  declared  that 
the  legatees  were  entitled  to  stand  in  the  place  of  the  creditors,  for 
so  much  of  the  personal  estate  as  had  been  exhausted  by  them  in  the 
payment  of  their  debts.fg) 

It  must  be  here  noticed,  that  m  Keeling  v.  Brown,  Sir  Richard 
Pepper  Arden,  Master  of  the  Rolls,  refused  to  confine  the  specialty 
creditors  of  the  testator  to  the  real  estate  disposed  of  by  a  general 
residuary  clause,  the  personal  estate  being  sufficient  to  pay  all  the 
debts,  but  not  the  legacies ;  although  the  Court,  from  the  implied 
charge  upon  the  land  by  the  will,  would  have  marshalled  the  assets 
for  the  simple  contract  creditors,  if  the  personal  estate  had  been 
sufficient  to  pay  their  demands.  In  that  case(A)  tflaron  Brown  be- 
gan his  will  in  these  words,  "  Imprimis,  I  will  and  direct  that  all  my 
just  debts  and  funeral  expenses  be  paid  and  discharged,  as  soon  as 
conveniently  may  be,  after  my  decease,  by  my  executrix  and  execu- 
tors hereinafter  named.  Item,  I  give,  devise  and  bequeath  to  my 
nephew  /.  Brown  all  that  my  messuage,  &c.  wherein  he  now  lives, 
at  If.,  and  also  the  sum  of  400Z.,  to  hold  to  him,  his  heirs,  executors, 
administrators,  and  assigns  for  ever."  The  testator  then  devised 
another  house  to  his  nephew  Charles  in  fee,  and  gave  another  house 

(e)  See  the  fourth  resolution  in  Hasletvood  v.  Pofie,  3  P.  Will,  323. 

(/)  3  Bro.  C.  C.  352.  (note. )  (,§•)  See  Muddle  v.  Fry,  6  Mad,  270. 

(A)  5  Ves.  359. 


624  Marshalling  of  Jlssets.  [Cn.  XV. 

to  his  wife  for  life,  with  remainder  to  /.  Brawn  in  fee.  And  after 
bequeathing  specific  parts  of  his  personal  estate  to  his  wife,  &c. 
and  giving  some  pecuniary  legacies,  he  gave  the  residue  of  his  estate 
and  effects,  whether  real  or  personal,  to  J.  Brown  absolutely,  and 
appointed  his  wife,  <S.  Fcrnehough,  and  H.  Hatton,  executrix  and 
executors.  The  testator's  personal  estate  being  large  enough  to 
pay  all  the  debts,  but  insufficient  to  answer  the  legacies,  the  ques- 
tion was,  whether  the  assets  should  be  so  marshalled,  as  at  least  to 
confine  the  specialty  creditors  to  the  real  estate  in  favour  of  the  lega- 
tees *?  and  the  Master  of  the  Rolls  expressed  a  clear  opinion,  that 
there  was  no  charge  of  the  debts  upon  the  real  estate,  but  a  mere 
direction  to  the  executors- to. pay  the  debts,  without  giving  them  any 
other  fund  than  the  personal  estate,  out  of  which  they  could  fulfil 
that  duty.  If  any  of  the  debts  were  to  go  unpaid  by  the  insufficiency 
of  the  personal  estate,  he  would  certainly  marshal  the  assets ;  mak- 
ing the  real  estate  to  pay  as  much  of  the  specialty  debts  as  would 
be  necessary  to  obtain  a  fund  from  the  personal  estate  for  payment 
of  the  simple  contract  creditors :  but  there  it  was  agreed  on  all 
hands,  that  it  was  not  necessary  for  the  payment  of  the  debts  of  the 
testator  to  do  so. 

Then,  there  being  no  charge  upon  the  real  estate  for  payment  of 
debts,  and  there  being  an  ample  fund  of  personal  estate  for  the  pay- 
ment both  of  specialty  and  simple  contract  debts,  he  was  clearly  of 
opinion  in  that  case,  there  was  no  fund  but  the  surplus  of  the  per- 
sonal estate,  if  there  should  be  any,  after  payment  of  all  the  debts 
of  the  testator.  He  could  not  marshal  the  assets  for  payment  of 
the  legacies.  He  had  formerly  fully  expressed  his  opinion  upon 
that  point,  as  to  the  difference  between  debts  and  legacies.  He 
understood  the  Lord  Chancellor  expressed  some  doubt  of  it  in  the 
case  of  Williams  v.  Chitty,(i)  but,  upon  reflection,  he  (the  Master 
of  the  Rolls)  remained  of  the  same  opinion,  and  decreed  an  account 
of  the  personal  estate,  and  of  the  debts,  funeral  expenses,  and  lega- 
cies; and  if,  after  payment  of  all  the  debts,  there  should  not  be 
enough  of  the  personal  estate  to  pay  all  the  legacies,  the  legatees 
must  abate  in  proportion.  There  was  no  other  fund  for  their 
payment. 

It  is  observable  in  the  last  case,  that  the  Master  of  the  Rolls 
seems  to.  have  thought  the  introductory  clause  in  the  will  was  suffi- 
cient to  charge  the  lands  with  the  specialty  debts  in  favour  of  simple 
contract  creditors,  but  not  in  favour  of  the  legatees,  under  the  per- 
suasion that  the  law  required  a  stronger  mark  of  intention  to  charge 
the  real  estate  with  legacies  than  with  debts :  and  this  interpretation 
of  his  words  seems  strengthened  by  his  reference  to  his  opinion  ex 
pressed  to  that  effect  in  Kighthy  v.  Kightley,  before  stated  and  con- 
sidered.(fe)  This  distinction  has,  indeed,  been  questioned  by  Lord 
Loughborough,  C.  in  the  case  alluded  to  by  the  Master  of  the  Rolls ; 
so  that  it  seems  this  decision  of  his  Honour,  in  Keeling  v.  Brown, 
cannot  be  entirely  devested  from  doubt,  while  Lord  Loughborough's 
opinion  remains  uncontrolled  by  equal  authority. 

2dly.  Assets  marshalled  in  favour  of  legatees,  where  the  real 

(J)  3  Ves.  551.  (jt)  Supra,  455. 


SECT.  I.]  Marshalling  of  Assets.  625 

estate  is  devised  subject  to  a  charge  for  payment  of  one  or  more 
legacies. 

In  the  case  of  Hariby  v.  Roberts,(l)  W.  Roberts,  by  his  will  gave 
several  legacies  to  the  defendant  and  others,  and  devised  his  real 
estates,  in  trust  for  two  persons  who  were  his  heirs  at  law,  and  who 
by  descent  would  take  as  co-parceners ;  and  by  a  codicil,  he  gave, 
over  and  above  \he  legacy  in  his  will,  another  legacy  of  30001.  to 
the  defendant,  which  he  directed  his  executors  and  trustees  to  pay; 
and  charged  all  his  real  and  personal  estate  whatsoever  with  the 
payment.  The  personal  estate  was  exhausted  in  payment  of  the 
3000/.  legacy;  and  the  question  was,  whether  the  other  legatees 
should  stand  in  the  place  of  the  30001!.  legatee,  to  be  paid  out  of 
the  real  estate.  Lord  Hardwicke,  C.  decreed  that  they  should. 
He  observed  that  he  saw  no  difference  between  that  case  and  one 
where  a  person,  indebted  by  a  simple  contract,  having  lands  and 
personal  estate,  begins  his  will  by  charging  all  his  estate  with  pay- 
ment of  his  debts,  and  then,  after  giving  general,  legacies,  devises 
his  real  estate  by  way  of  specific  devise.  The  simple  contract  cre- 
ditors exhaust  the  personal  estate ;  the  Court  would  order  the  gene- 
ral legatees  to  stand  in  their  place,  and  come  upon  the  real.  A 
second  question  was  made,  whether  the  lands  and  legacies  should 
bear  the  burthen  in  proportion  to  their  values'?  but  the  Lord  Chan- 
cellor decreed  there  was  no  ground  for  it,  nor  was  it  the  intention  of 
the  testator,  nor  was  there  any  case  where  it  had  been  done. 

The  same  equity  is  exercised  in  marshalling  assets  among  le- 
gatees, where  some  legacies  are  made  effectual  charges  upon  the 
real  estate,  and  others  are  only  charged  on  the  personal  estate. 

Thus  in  Masters  v.  Masters,(rn)  Mary  Masters,  by  her  will,  after 
giving  several  general  and  specific  legacies,  devised  her  real  estate 
to  her  nephew  and  heir  at  law,  the  defendant,  charged  with  the  pay- 
ment of  her  legacies  above  mentioned,  and  made  him  executor. 
The  testatrix  afterwards  added  a  codicil  to  her  will,  and  gave  other 
legacies,  which  were  not  charged  upon  the  real  estate.  It  was  de- 
creed by  Sir  Joseph  Jekyll,  Master  of  the  Rolls,  that  the  personal 
estate  not  being  sufficierit  to  pay  the  legacies  both  by  the  will  and 
codicil,  and  the  real  estate  being  liable  to  the  legacies  by  the  will, 
and  not  to  those  by  the  codicil,  the  estate  should  be  so  marshalled, 
that,  as  far  as  possible,  the  whole  will  might  take  effect,  and  all  the 
legacies  be  paid.  And  therefore,  that  the  legatees  in  the  yvill 
should  be  paid  out  of  the  real  estate  ;  and  if  that  should  be  defi- 
cient, as  to  the  surplus,  they  should  come  in  average  with  pecuniary 
legatees  in  the  codicil,  to  be  paid  out  of  the  personal  estate ;  and 
that,  there  being  admitted  to  be  a  deficiency,  the  land  should  be 
forthwith  sold  to  prevent  a  greater  deficiency. 

In  the  case  of  tfligh  v.  The  Earl  of  Darnley,(n)  the  defendant's 
father,  the  then  late  Earl  of  Darnley,  having  two  sons  and  three 
daughters,  gave  by  his  will  8000Z.  a  piece  to  his  two  eldest,  and 
60001.  to  his  youngest  daughter,  charging  his  real  estate  with  the 
payment  thereof.  By  a  codicil,  he  bequeathed  several  general  le- 
gacies of  considerable  value  to  his  brothers  and  sisters,  but  without 

(/)  Amb.  127.  This  case  appears  to  be  the  same  as  Hamley  v.  Fisher,  report- 
ed by  Dickens,  104.  (m)  1  P.  Will.  421.  (n)  2  P.  Will.  619. 


626  Marshalling  of  Assets.  [Cn.  XV. 

charging  them  upon  his  real  estate.  Subsequently  to  the  date  of 
the  codicil,  he  entered  into  a  contract  before  the  Master,  for  the 
payment  of  17,000/.  for  a  third  of  the  manor  of  Cobham  Hall  in  Kent. 
The  Master  reported  him  the  best  purchaser ;  and  before  his  death, 
which  happened  soon  after,  the  report  was  absolutely  confirmed. 
The  Earl's  personal  estate,  before  his  entering  into  the  contract  for 
this  purchase  of  the  estate,  was  sufficient  for  the  payment  of  all  his 
legacies  ;  but  the  performance  of  the  contract  would,  as  it  was 
thought,  occasion  a  deficiency  of  assets.  The  legatees  in  the  codi- 
cil therefore  prayed  by  their  bill,  that  the  assets  might  be  marshall- 
ed, and  the  daughters  legacies  by  the  will  paid  out  of  the  real 
estate ;  or  if  already  recovered  out  of  the  personal  estate,  then  that 
the  plaintiffs  might  stand  in  the  place  of  the  daughters,  and  take  so 
much  out  of  the  land  for  their  legacies,  as  these  had  exhausted  out 
of  the  personal  estate  ;  which  the  Court  decreed  as  reasonable,  and 
within  the  common  rule  of  marshalling  assets. 

The  same  rule  was  adopted  in  the  recent  case  of  Banner  v.  Bon- 
ner.(o]  In  that  case  Thomas  Banner,  by  will  duly  executed  ac- 
cording to  the  statute  of  frauds,(p)  gave  legacies  to  his  eldest  son 
Robert  Banner  Warwick,  and  to  his  daughters ;  and  devised  certain 
real  estates  to  trustees  for  a  term  of  one  thousand  years,  and  subject 
thereto,  to  his  eldest  son  for  life,  and  his  first  and  other  sons  in 
strict  settlement;  and  the  trusts  of  the  term  were  in  the  usual  man- 
ner declared  to  raise  and  pay  to  his  son  and  daughters  the  legacies 
"  hereby  bequeathed  to  them  respectively,  with  interest  for  the  same 
as  aforesaid,  as  also  the  several  other  legacies  hereinafter  bequeathed" 
By  a  subsequent  codicil,  the  testator  gave  to  three  of  his  daughters 
800Z.  each,  in  addition  to  the  legacies  given  by  his  will,  and  he  di- 
rected his  codicil  to  be  considered  as  part  of  his  will.  The  codicil 
was  not  altered.  The  question  upon  the  bill  filed  by  two  of  the 
daughters  for  their  legacies  was,  whether  those  given  by  the  codicil 
were  charged  upon  the  real  estate,  the  personal  estate  being  insuffi- 
cient ;  and  Lord  Eldon,  C.  said  the  construction  he  was  obliged  to 
adopt  was  very  unfortunate  ;  but  he  could  not  make  the  declaration 
prayed  by  the  bill,  that  the  legacies  bequeathed  by  the  unattested 
codicil  were  charged  upon  the  real  estate.  That  was  not  a  general 
charge  of  legacies,  as  Hannis  v.  Packer. (q)  He  could  only  marshal 
the  assets ;  as  Sir  Joseph  Jekyll  did  in  Masters  v.  Maslers.(r) 

3dly.  The  following  cases  are  instances  wherein  the  real  estate 
is  devised  subject  to  a  charge  both  with  debts  and  legacies. 

In  the  case  of  Burton  \.Pierpoint, (s)  Mr.  William  Pierp&int,  upon 
his  marriage  with  Mrs.  Darcy,  settled  his  real  estate  on  himself  for 
life,  remainder  to  his  wife  for  life,  remainder  to  the  first  and  other  sons 
of  his  marriage  in  tail  male,  remainder  to  his  own -right  heirs.  The 
testator  having  two  sons  by  this  marriage,  and  having  a  small  estate 
in  fee-simple,  unsettled,  devised  his  wife's  jewels  to  her,  and  like- 
wise the  use  of  the  plate  to  her  for  life ;  after  which  he  devised  all 
his  real  estate,  subject  to  his  debts  and  legacies,  and  after  his  debts 
and  legacies  paid,  to  his  kinsman  the  Marquis  of  Dorchester  ;  and  in 
1706,  the  testator  died,  leaving  two  infant  sons.  At  the  testator's 

(o)  13  Ves.  379.  (/z)  29  Ch.  2.  c.  3.  (y)  Amb.  556.  safira,  457. 

(r)  Last  page.  («)  2  P.  WiU.  78.  82. 


SECT.  II.]  Marshalling  of  Jlssets.  627 

death  his  real  and  personal  assets  were  not  sufficient  for  the  pay- 
ment of  his  debts  ;  his  widow,  therefore,  gave  up  the  jewels  and  plate 
bequeathed  to  her,  which  were  applied  towards  the  debts ;  but  in 
the  decree  obtained  for  the  sale  of  the  real  estate,  and  for  an  ac- 
count of  the  personal  as  well  as  real  assets,  the  widow's  claim  of  her 
jewels  and  plate  was  saved  for  her.  In  1719,  the  testator's  two  sons 
died  under  age  and  without  issue,  whereby  the  estate  tail  of  the 
settled  lands  expired,  and  the  reversion  in  fee  falling  in,  became 
liable  by  the  will  to  the  debts.  The  Lord  Chancellor  said,  that  in 
the  present  case,  as  there  was  an  express  bequest  of  the  jewels  to  the 
widow,  notwithstanding  that,  at  the  time  of  the  death  of  the  testator, 
there  were  not  assets,  either  real  or  personal,  yet  since  afterwards, 
though  by  a  remote  accident,  assets  had  happened,  there  could  be 
now  no  inconvenience  to  any  creditor  or  others  ;  and  that  this  lega- 
cy should  be  paid,  and  the  intention  of  the  testator  performed,  and 
the  rather,  for  that  the  real  and  personal  assets  were  by  the  will 
made  liable  to  the  debts  and  legacies  ;  especially  as  it  was  the  con- 
stant rule,  that  a  legatee,  where  the  real  estate  was  made  liable  to 
pay  debts,  on  the  creditors  exhausting  the  personal  assets,  should 
stand  in  the  place  of  the  creditors,  and  be  paid  out  of  the  land  ;  and 
that  this  was  stronger  in  the  case  of  a  specific  legacy,  the  principal 
case,  which  was  to  be  preferred'in  payment  before  a  pecuniary  lega- 
cy. His  Lordship  also  decreed,  that  all  the  legatees  were  to  be  paid 
before  the  residuary  legatee  took  any  thing. 

In  the  case  of  Norman  v.  Morrell,(t)  Sarah  Long  devised  her  real 
estate,  subject  to  an  annuity,  some  legacies,  and  her  debts  and 
funeral  expenses,  and  also  subject  to  the  debts  of  her  late  brother ; 
and,  by  a  subsequent  codicil,  gave  a  legacy  to  Mary  Norman.  The 
personal  estate  was  exhausted  in  payment  of  mortgage  and  bond 
debts  ;  Mary  JVorman  filed  a  bill  for  her  legacy,  praying  satisfac- 
tion thereof  out  of  the  testatrix's  real  estate,  or  at  least  to  the  ex- 
tent of  the  personal  estate  exhausted  in  payment  of  such  of  her 
debts  and  legacies  as  should  appear  to  have  affected  her  real 
estates  :  and  the  Master  of  the  Rolls  decreed,  that  the  assets  should 
be  marshalled. 

SECT.  II.  The  marshalling  of  assets  in  favour  of  legatees,  where 
the  real  estate  devised  is  not  charged  by  the  will  with  debts 
or  legacies,  but  there  is  a  specific  lien  on  the  real  estate  so 
devised ; 

And,  first,  we  shall  consider  the  cases  where  the  specific  lun  is  a 
mortgage. 

In  the  case  of  I^ukins  v.  Leigh,(u)  Benjamin  Knight  having  mort- 
gaged his  freehold  lands  for  2500Z.  began  his  will  in  these  words: 
"As  touching  all  my  worldly  estate,  after  payment  of  my  debts  and 
funeral  charges,  which  I  will  to  be  first  paid, (a:)  I  give  my  freehold 
estate  in  Kent  to  my  wife,  for  life,  chargeable  with  an  annuity  of 
30J.  to  E.  Knight  for  life."  And  then,  after  his  wife's  death,  he 

(0  4  Ves.  769.  («)  Forrest.  53. 

(or)  As  to  the  interpretation  of  this  introductory  clause  constituting  a  charge 
upon  the  real  estate,  see  Chap.  12.  sect.  2.  supra,  p.  448. 


628  Marshalling  of  Assets.  [Cn.  XV. 

gave  his  freehold  estate,  so  charged,  to  the  children  of  his  three  sis- 
ters, and  directed  the  residue  of  his  personal  estate  to  be  placed  out 
at  interest,  his  wife  to  have  the  interest  for  life,  and,  after  her  death, 
the  principal  to  be  divided  among  the  children  of  his  three  sisters^ 
and  he  gave  his  wife  1 500Z.  with  a  proviso  that  the  provisions  in  the 
will  should  be  accepted  by  her  in  lieu  of  dower,  and  in  satisfac- 
tion of  her  share  in  his  personal  estate.  The  question  was,  whether 
the  personal  estate  should  be  applied  in  exoneration  of  the  real,  so 
as  to  defeat  the  general  legatees,  there  not  being  sufficient  to  pay 
the  15001.  if  the  personal  estate  should  be  applied  to  exonerate  the 
real1?  And  Lord  Talbot,  C.  decreed,  "that  the  legatees  must  have 
the  legacies  out  of  the  personal  estate,  in  case  the  mortgagee  kept 
to  the  real ;  and  if  he  fell  upon  the  personal,  they  had  a  right  to 
stand  in  his  room,  for  so  much  out  of  the  real  estate  as  he  should  take 
out  of  the  personal,  that  being  a  proper  fund  for  their  payment." 

In  the  case  of  Forrester  v.  Leigh,(y)  Charles  Leigh  being  seised 
of  real  and  personal  estate,  and  being  indebted  by  mortgages  con- 
tracted by  himself,  and  in  other  mortgages  contracted  by  the  former 
owner  on  part  of  his  real  estate,  from  whom  he  purchased,  and  also  in 
simple  contract  debts,  after  giving  by  his  will  several  specific  lega- 
cies to  Lady  Barbara,  his  wife,  and  several  legacies  to  the  plaintiff, 
he  gave  his  real  estate  to  his  wife,  for  life,  remainder  to  Thomas 
Lord  Leigh  for  life,  with  divers  remainders  over.  Thomas  Lord 
Leigh,  at  his  death,  left  the  defendant  Lord  Leigh,  his  only  son. 
The  bill  was  brought  by  the  plaintiffs,  for  their  legacies;  and  if  the 
personal  estate  should  be  exhausted  in  payment  of  debts  by  special- 
ty, that  the  plaintiffs  might  stand  in  the  place  of  the  creditors,  and 
be  paid  out  of  the  real  estate.  Lord  Hardwicke,  C.  observed,  there 
were  several  questions;  first,  whether  the  plaintiffs  were  entitled  to 
marshal  the  assets  generally,  and  to  stand  in  the  place  of  the  spe- 
cialty creditors  generally.  First,  he  should  consider  the  question 
as  contended;  (i.  e.}  to  stand  in  the  place  of  bond  creditors,  not 
accompanied  with  mortgages,  where  there  was  a  devise  of  land. 
Secondly,  he  should  consider  it  where  there  were  mortgages.  As  to 
the  first,  no  authorities  went  so  far ;  they  were  otherwise ;  and  as  to 
the  second  question,  respecting  the  mortgages,  his  Lordship  said, 
"  They  are  of  two  sorts,  1st,  those  which  were  contracted  by  the  tes- 
tator himself;  2d,  those  contracted  by  the  former  owner  of  the  es- 
tates. The  covenant  for  payment  of  those  mortgages,  entered  into 
by  the  former  owner,  will  not  bind  the  personal  estate  of  the  testa- 
tor. They  were  entered  into  diverso  intuitu.  The  two  purchasers 
did  it  to  indemnify  each  other.  The  debt  is  apportioned  on  each 
part,  and  the  testator  covenants  to  pay  his  proportion,  or  to  indem- 
nify the  purchaser  of  the  other  part  of  the  estate.  Where  an  estate 
descends  subject  to  a  mortgage,  if  no  person  will  take  an  assignment 
of  the  mortgage,  without  the  heir-at-law  covenanting  to  pay,  such 
covenant  only  subjects  his  personal  estate  collaterally.  I  am  of 
opinion  that  the  plaintiffs  have  a  right  to  stand  in  the  place  of  the 
mortgagees,  to  have  satisfaction  out  of  the  real  estate,  for  what  they 
shall  exhaust  of  the  personal.  A  mere  specialty  debt  is  no  lien  upon 

(y)  Ambl.  171. 


SECT.  II.]  in  favour  of  Legatees.  629 

land  in  the  hands  of  the  obligor,  his  heir  or  devisee.     A  mortgage  is 
a  lien,  and  an  estate  in  the  land. "(z) 

The  same  rule  holds  a  fortiori  where  the  estate  descends  subject  to 
a  specific  lien. 

This  has  been  long  a  settled  rule  of  the  Court  of  Chancery  ;  we 
find  it  acted  upon  in  an  anonymous  case,  32d  Car.  2.  (a)  In  the 
case  alluded  to,  a  father  seized  in  fee,  mortgaged  the  land,  and  gave 
a  statute  to  the  mortgagee  to  pay,  &c.  and  by  his  will  bequeathed 
500/.  to  his  daughter,  and  died  ;  the  mortgagee  took  so  much  of  the 
personal  estate  in  execution  on  the  statute,  that  there  were  not  suffi- 
cient assets  left  to  pay  the  legacy.  The  question  was,  whether,  as 
the  heir  had  had  the  mortgage  discharged  out  of  the  personal  estate 
liable  to  the  legacy,  the  daughter  should  have  relief  against  the  heir, 
for  the  amount  of  her  legacy.  And  the  Chancellor  observed,  "where 
the  heir  is  indebted  by  mortgage  made  by  his  father,  or  by  other 
means  as  heir  to  his  ancestor,  the  personal  estate  in  the  hands  of  the 
executors  shall  be  employed  to  pay  that  debt  in  ease  of  the  heir  :  but 
if  there  be  no  assets  to  pay  other  creditors  or  legatees,  the  heir  shall 
not  turn  his  charge  on  the  personal  estate  ;  in  this  case  here  was 
sufficient  to  pay  the  debt  by  mortgage  and  the  legacy  out  of  the  per- 
sonal estate,  and  when  both  can  be  satisfied,  both  shall  be  satisfied  : 
and  the  contrivance  to  make  the  personal  estate  liable  to  the  legacy 
towards  the  satisfaction  of  the  mortgage  looks  like  a  fraud,  and  shall 
not  prejudice  the  legatee,  but  she  shall  have  recompense  against  or 
upon  the  mortgage,  though  originally  not  liable  to  her." 

So  also  in  the  more  recent  case  of  Lucy  v.  Gardiner, (b)  it  may  be 
collected  that  the  estate  descended,  though  that  fact  is  not  specified. 
In  that  case  a  bill  was  filed  for  a  legacy  of  1500Z.  given  to  the  plain- 
tiff Sarah,  by  the  will  of  her  father,  who  made  the  defendant,  .his  son 
and  heir,  executor.  The  defendant  insisted  that  there  were  not 
sufficient  assets  to  pay  the  debts  and  legacies,  and  to  show  the  defi- 
ciency, said,  that  the  testator  upon  his  marriage  with  his  last  wife, 
conveyed  a  freehold  estate,  and  also  a. term  for  years  in  the  Sun  Ta- 
vern in  Holborn,  to  trustees,  to  raise  1500/.  for  his  .wife,  in  full  of 
any  demand  which  she  might  otherwise  have,  and  that  he  had  sold 
the  term  for  years,  and  thereby  raised  the  1500?.  and  paid  the  same 
to  the  wife,  on  which  account  the  residue  of  the  personal  estate  was 
not  sufficient  to  pay  the  whole  1500/.  legacy.  But  it  was  decreed, 
by  Barons  Price,  Page,  and  .Gilbert,  that  the  executor  should  not 
apply  the  term  to  the  payment  of  the  widow's  1500Z.:  but  that  the 
same  should  go;  in  case  of  a  deficiency  of  .other  personal  assets,  to- 
wards payment  of  debts  and  other  legacies  :.  and  the  1500Z.  given  to 
the  widow  (and  then  paid,)  should  remain  a  charge  upon  the  free- 
hold estate. 

The  preceding  cases  in  this  section  illustrate  also  the  following 
rule  of  the  Court:  "  That  although  the  natural  fund  for  the  payment 
of  debts  in  the  personal  estate  ;  and  the  heir  or  devisee  of  the  real 
is  in  general  entitled  to  have  the  personal  estate  applied  in  exonera- 
tion of  incumbrances  affecting  the  former  ;  yet  the  Court  of  Chance- 
ry will  not  permit  such  arrangement  to  take  place,  when  it  would  de- 

(r)  See  also  Rider  v.  Wager,  2  P.  Will.  329.  335.  infra,  p.  630.  Aldrichv 
Coofier,  8  Ves.  397.  (a)  Chan.  Cases,  2d  part,  4.  (*)  Bunb.  137. 

VOL.  i.  4  L 


630  Marshalling  of  Assets  [Cn.  XV. 

feat  legatees  of  their  legacies."  The  rule  is  further  exemplified,  in 
the  case  of  a  general  legatee,  by  the  case  of  Rider  \.  JVager,(c).  In 
that  case,  Admiral  Littleton,  after  making  his  will,  by  which  he  dis- 
posed of  his  real  estate,  and  gave  some  general  legacies,  mortgaged 
the  estate  for  3000J.;  and  it  was  contended,  that  this  debt  should  be 
paid  out  of  the  personal  estate,  prior  to  the  specific,  or  at  least  before 
the  general,  legacies  ;  and  it  was  said  to  have  been  determined,  that 
a  mortgage  should  be  paid  out  of  the  personal  estate,  in  preference 
to  the  customary  or  orphanage  part  by  the  custom  of  London ;  which 
last  was  admitted  by  the  Court,  because  the  custom  should  not  take 
place,  till  after  payment  of  debts;  and  it  was  afterwards  admitted 
by  the  counsel  on  both  sides,  that  the  land  being  made,  by  the  tes- 
tator himself,  a  fund  for  the  payment  of  the  mortgage  money,  should 
not  be  exonerated  by  the  personal  estate,  so  as  to  disappoint  any  of 
the  debts  or  legacies,  though  it  was  entitled  to  such  exoneration 
against  an  administrator  or  residuary  legatee. 

So  also  in  Oneal  v.  Meads(d)  the  rule  is  exemplified  in  favour  of  a 
specific  legatee.  In  that  case,  one  seised  in  fee  of  a  real  estate, 
•which  he  mortgaged  for  500J.  and  possessed  of  a  leasehold,  devised 
the  former  to  his  eldest  son  in  fee,  and  gave  the  latter  to  his  wife, 
and  died,  leaving  debts  which  would  exhaust  all  his  personal  estate, 
except  the  leaseholds  given  to  his  wife.  Upon  the  question,  whether 
the  leaseholds  devised  to  the  wife  should  be  liable  to  discharge  the 
mortgage,  the  Master  of  the  Rolls  decreed,  that,  as  the  testator  had 
charged  his  real  estate  with  this  mortgage,  and,  on  the  other  hand, 
specifically  bequeathed  the  leasehold  to  his  wife,  the  heir  should  not 
disappoint  the  legacy  by  laying  the  mortgage  debt  upon  it,  as  he 
might  have  done,  had  it  not  been  specifically  devised ;  and  though 
the  mortgaged  premises  were  also  specifically  given  to  the  heir,  yet 
he  to  whom  they  were  thus  devised,  must  take  them  cum  onere  as  pro- 
bably they  were  intended.  That,  by  such  construction,  each  devise 
would  take  effect;  viz.  the  leasehold  estate  would  go  to  the  devisee 
thereof,  and  the  heir  would  enjoy  the  freehold,  though  subject  to 
the  burden,  with  which  the  testator  in  his  lifetime  had  charged  it. 
The  Master  of  the  Rolls  also  observed,  that  the  resolution  did  not  in 
the  least  interfere  with  Clift on  v.  Burt,  because  in  the  latter  there 
was  no  mortgage. 

The  preceding  cases  are  instances  wherein  the  specific  lien  was 
a  mortgage ,«  and  it  appears  clearly  settled,  that  the  assets  may  be 
so  marshalled,  as  to  let  the  legatees  come  upon  the  mortgaged 
estate  devised  or  descended  in  the  place  of  the  mortgagee  who  has 
been  satisfied  out  of  the  personal  estate.  We  proceed,  in  the  next 
place,  to  a  question  which  has  excited  considerable  discussion, 
namely,  whether  the  assets  will  be  marshalled  in-  favour  of  legatees, 
where  the  specific  lien  on  the  real  estate  is  that  of  a  vendor,  in  re- 
spect of  purchase  money  due  to  him  by  the  testator,  who  was  the 
purchaser  ;  or  in  other  words,  whether  the  legatee  of  the  purcha- 
ser has  a  right  to  come  upon  the  real  estate  for  the  satisfaction  of 
his  legacy,  to  the  amount  for  which  the  personal  assets  have  been 
applied  in  payment  of  the  purchase  money,  so  due  by  the  testator  to 
the  vendor. 

(c)  2  P.  Will  329.  335.  see  also  Ttyfiing  v.  Tijifiing,  1  ib.  729.     (rf)  1  P.  Will  693. 


SECT.  II.]  in  favour  of  Legatees.  631 

The  authorities  are  conflicting,  and  we  shall   first  consider  those 
which  oppose  the  claim  of  the  legatees. 

Coppinv.  Coppin,(e)  determined,  that  the  legatees  could  not  stand 
in  the  place  of  the  vendor,  with  respect  to  his  equitable  lien.  In 
that  case  Francis  Coppin,  the  younger  brother  of  the  defendant 
John  Coppin,  agreed  with  the  defendant  for  the  purchase  of  an 
estate  in  Bucks  for  4000Z.  the  purchase  deeds  were  executed  in  the 
lifetime  of  Francis,  but  part  of  the  purchase  money  only  was  paid. 
Afterwards  Francis  made  his  will,  whereby,  after  giving  several  con- 
siderable legacies,  he  gave  the  residue  of  his  land  and  goods  to  his 
brother  John  Coppin.  The  will  was  attested  only  by  two  witnesses. 
Afterwards  Francis  the  purchaser  died,  leaving  his  brother  John  his 
heir  at  law  and  executor.  The  legatees  filed  their  bill  for  their 
legacies.  They  alleged  that  the  purchase  deed  was  fraudulent, 
and  according  to  one  report(/)  of  the  case,  urged,  that  although 
the  will  could  not  charge  the  lands,  yet  that  the  vendor  had  an 
equitable  lien  thereon  for  the  purchase  money  remaining  unpaid  : 
Lord  King  held,  that  the  defendant  John  Coppin  had  a  right  to  re- 
tain the  residue  of  the  purchase  money  out  of  the  assets.  It  appears 
that  the  assets  would  be  exhausted  in  discharge  of  the  purchase 
money.  The  claim  of  the  legatees  to  charge  the  real  estate  in  the 
place  of  the  equitable  lien  does  not  by  the  report  appear  to  have 
been  noticed  by  Lord  King.  The  decree  however  virtually  deter- 
mined, that  the  legatees  could  not  stand  in  the  place  of  John  Cop- 
pin  the  vendor,  in  respect  of  his  equitable  lien. 

In  the  case  of  Pollexfen  v.  Moore,(g]  Thomas  Moore  .agreed  to 
purchase  of  the  plaintiff  an  estate  for  1200Z.  but  died  before  he  had 
paid  the  whole  of  the  purchase  money.    T.  Moore,  by  his  will,  after 
giving  SQOl.  to  the  defendant  Mary  Moore  his  sister,  devised  the 
purchased  estate,  and   all  his  personal  property  to  J.  Kemp,  and 
made  him  executor.     J.  Kemp  committed  a  devastavit  of  the  per- 
sonal estate,   and  died,  and  the  purchased  estate  descended  upon 
B.   Kemp,   his   son  and    heir.     J.   Kemp  died  intestate,   and 
ministration  de  bonis  non  of  T.  Moore  was  granted  to  Mary  Moore. 
The  plaintiff  brought  the  bill  against  the  representative  oi  the  real 
and  personal  estate  of  T.  Moore,  and  J.  Kemp  for  the  remainder  ot 
the  purchase  money.     Mrs.  Moore,  the  sister  and  .legatee  of  the  i 
tator,  filed  a  cross  bill,  praying  that  if  the  remainder  of  the  purchas 
money  should  be  paid  to  the  plaintiff  Pollexfen,  out  of  the  personal 
estate  of  T.  Moore  and  J.  Kemp,  she  might  stand  in  his  place,  an- 
be  considered  as   having  a  lien  upon   the  purchased  estate   i< 
legacy.     Lord  Hardwicke,  C.  observed,  "  The  vendor  of  his  estate 
has  a  lien  upon  the  estate  he  sold,  for  the  remainder  of  the  purchase 
money  :  for  from  the  time  of  the  agreement,  .Moors  was  a  trustee 
to  the  money  for  the  vendor.     But  this  equity  will  not  extend      >  a 
third  person,  but  is  only  confined  to  the  vendor  and  vendee  ;  and 
the  vendor  should  exhaust  the  personal  assets  of  Moore  and  J.  Kemp, 
the  defendant  will  not  be  entitled  to  stand  in  his  place,  ancUp  < 
upon  the  purchased  estate  in  the  possession  .of/.  Kemps  heir.    JW 
then  the  heir  of  Kemp  shall  not  avail  himself  of  the  injustice  of 
father,  who  has  wasted  the  assets  of  Moore,  which  should  have 
(<?)  2  P.  Will.  290.  (/)  Select  Cas.  ch.  28.  (g)  3  Atk.  C~3. 


632    *  Marshalling  of  Assets  [Cn.  XV. 

applied  in  paying  the  defendant's  legacy.  Therefore,  the  estate 
which  has  descended  from  /.  Kemp,  the  executor  of  T.  Moore,  upon 
B.  Kemp,  comes  to  him  liable  to  the  same  equity  as  it  would  have 
been  against  the  father,  who  has  misapplied  the  personal  estate  ; 
and,  in  order  to  relieve  Mrs.  Moore,  I  will  direct  Pollexfenlo  take  his 
satisfaction  upon  the  purchased  estate,  because  he  has  an  equitable 
lien  both  upon  the  real  and  personal  estate,  and  will  leave  this  last 
fund  open,  that  Mrs.  Moore,  who  can  at  most  be  considered  as  a 
simple  contract  creditor,  may  have  a  chance  of  being  paid  out  of 
the  personal  assets."  His  Lordship  decreed  that  the  residue  of  the 
purchase  money  should,  in  the  first  place,(h)  be  paid  out  of  the 
personal  estate  of  T.  Moore,  but  if  it  should  be  insufficient  to  pay 
such  demand,  and  all  his  other  debts,  legacies  and  funeral  expenses, 
or  if  the  personal  estate  of  Moore  was  not  then  sufficient,  by  reason 
that  the  assets  of  Kemp  were  not  sufficient  to  answer  such  part 
thereof,  as  came  to  his  hand,  then  such  deficiency,  so  far  as  the 
personal  estate  of  the  said  T.  Moore  should  be  applied  in  payment 
of  the  said  purchase  money,  should  be  made  good  out  of  the  pur- 
chased estate  ;  and  a  competent  part  thereof  was  decreed  to  be  sold 
accordingly. 

In  the  preceding  case,  Lord  Hardwicke  expressed  his  opinion, 
that  the  equity  did  not  extend  to  a  third  person  ;  but  he  seems  to 
have  deviated  from  the  rule  in  favour  of  a  third  person  on  the  ground 
of  fraud.  Mr.  Sugden,  who  discusses  the  point  under  consideration 
in  his  valuable  treatise  on  the  Law  of  Vendors  and  Purchasers,  in- 
geniously suggests,  'that  Lord  Hardwicke 's  decision  in  Pollexfen  v. 
Moore,  was  made  on  the  ground  that,  as  follexfen  had  not  deliver- 
ed the  title  deeds,  but  had  by  agreement  kept  them  as  a  security  for 
the  purchase  money,  it  must  be  considered  as  an  equitable  mortgage, 
and  hence  that  the  dictum  and  determination  were  not  at  variance  ; 
but  Lord  Hardwicke  seems  from  the  decision,  as  reported,  to  have 
proceeded  exclusively  on  the  ground  of  fraud  in  /.  Kemp. 

The  authorities,  in  favour  of  the  legatee's  right  to  have  the  assets 
marshalled,  remain  to  be  considered. 

The  case  of  Austen  v.  Halsey,(i)  bears  upon  the  subject,  though 
that  case  was  decided  upon  the  general-construction  of  the  will.  In 
that  case,  Robert  tflusten,  by  his  will,  gave  legacies  to  his  daughters 
and  others,  and  then  devised  and  bequeathed  his  freehold,  copyhold, 
leasehold,  and  other  personal  estates  to  trustees,  absolutely,  upon 
trust  to  convey  and  assign  the  same  to  his  son  Henry  Edward  Austen 
absolutely,  when  he  attained  twenty-one,  or  married  before  with 
consent ;  but  in  case  he  married  before  twenty-one  without  consent, 
the  trustees  were  to  settle  the  freehold  and  copyhold  estates  upon 
his  son  and  his  issue  in  strict  settlement,  with  several  remainders 
•  over ;  and  also  to  assign  the  leasehold  and  other  personal  estates, 
and  the  savings  and  accumulations  thereof,  after  payment  of  debts 
and  legacies,  to  his  daughters  equally.  By  a  codicil,  dated  1st  of 
November  1797,  duly  executed  according  to  the  statute,  the  testator 
stated  that  the  trustees  of  a  certain  estate  called  Titings,  had  pro- 
posed to  sell  it  to  him,  and  in  case  of  his  death  before  the  comple- 
tion of  the  contract,  he  directed  his  trustees  to  complete  the  same, 

(A)  As  corrected  by  Mr.  Sugden  from  the  Register's  book,  Vend,  and  Pur.  533. 
Ed.  1822.  (i)  6  Ves.  475. 


SECT.  II.]  in  favour  of  Legatees. 

and  settle  the  estate  to  the  uses  in  the  will  directed  of  his  other 
estates ;  and  he  gave  them  a  power  to  apply,  the  personal  estate  to 
that  purpose.  On  the  2d  of  November,  the  testator  executed  the 
contract  for  the  purchase  of  the  Tiling  estate  for  7000Z.  exclusively 
of  the  timber  which  was  to  be  taken  at  a  valuation,  and  he  died  on 
the  day  following.  The.trustees  completed  the  purchase  out  of  the 
personal  estate  which  was  thereby  exhausted.  The  daughters  filed 
their  bill  against  the  brother  and  the  trustees  for  their  legacies ; 
praying,  among  other  things,  that  the  purchase  of  the  estate  called 
Tilings  might  be  completed,  the  purchase  money  paid  out  of  the 
testator's  leasehold  and  personal  estates  specifically  bequeathed,  and 
not  from  the  other  personal  estate,  in  order  that  the  personal  estate 
might  be  applied  in  payment  of  the  legacies.  Upon  the  first  ques- 
tion, whether  the  bulk  of  the  real  estate  was  charged  with  the  lega- 
cies 9  Lord  Eldon,  C.  decided  in  the  negative.  And  upon  the 
second  question,  whether  the  purchased  estate  might  by  circuity  be 
made  answerable  to  the  legacies  "?  His  Lordship  said,  "  Pollexfen  v. 
Moore  is  the  only  case  cited  ;  but,  without  that  authority,  I  consider 
it  clearly  settled,  that  the  vendor  has  a  lien  for  the  purchase  money, 
while  the  estate  is  in  the  hands  of  the  vendee  :  I  except  the  case, 
where  upon  the  contract,  evidently  that  lien  by  implication  was  not 
intended  to  be  reserved.  That  is,  in  equity,  very  like  a  charge,  and 
the  cases  of  marshalling  seem  to  have  gone  this  length,  that  where 
there  is  a  charge  upon  an  estate  descended,  a  legatee  shall  stand  in 
the  place  of  the  person  having  that  charge,  resorting  to  the  personal 
estate ;  and  I  do  not  think  a  power  to  apply  the  personal  estate, 
which  is  all  that  is  given  by  this  codicil,  amounts  to  a  command, 
leaving  no  discretion  to  the  trustees.  There  is  a  difficulty  here  from 
the  -circumstance,  that  the  estate  purchased  has  not  descended,  but 
is  devised ;  and  there  is  a  difference  in  marshalling  as  to  that.  In 
this  instance  it  is  devised  to  the  heir  with  many  remainders  over. 
It  may  be  found  difficult  for  the  legatees  by  means  of  this  circuity 
to  find  a  fund  for  payment." 

In  the  case  of  Trimmer  v.  Bayne,(k)  the  question  came  before  Sir 
William  Grant,  and  called  for  a  decision.  In  that  case,  a  claim  of 
Alexander  Bayne,  the  heir  at  law  of  the  testator,  had  been  ascertain- 
ed by  the  Master's  report  to  amount  to  3630Z.  and  a  fraction,  in  re- 
spect of  specialty  and  simple  contract  debts,  and  the.purchase  mo- 
ney of  real  estates  contracted  for  by  the  testator  before  his  death, 
by  writing  not  under  seal,  paid  out  of  the  money  produced  by  sale 
of  the  testator's  real  estate.  The  deposit  money  only  had  been  paid 
by  the  testator.  The  cause  came  on  for  further  directions,  and  upon 
a  petition  by  the  heir,  the  principal  question  was  upon  his  claim  to 
be  reimbursed  his  payments  out  of  the  real  fund  on  account  of  the 
purchase  money  of  the  estates  contracted  for  by  the  testator.  The 
case  of  Coppin  v.  Coppin  was  not  cited,  but  for  the  heir  it  was  con- 
tended, that  there  was  no  decision  against  the  dictum  of  Lord  Hard- 
wicke  in  Pollexfen  v.  Moore.  The  Master  of  the  Rolls  observed,  in 
reference  to  that  case,  "  this  is  a  very  obscure  report,  and  it  has 
perplexed  me  very  much  formerly ;  the  decision  is  directly  against 
the  dictum  of  Lord  Hardwicke.  This  cannot  be  distinguished  from 

(£)  9  Ves.  209. 


634  Marshalling  of  Assets  [Cn.  XV. 

the  common  case  of  marshalling  ;  that  a  person  having  two  funds 
shall  not  by  his  choice  disappoint  another  having  only  one." 

In  the  case  of  Headley  v.  Readhead,(l)  the  principle  of  marshalling 
seems  to  have  been  admitted  in  favour  of  the  legatees,  but  (it  is  pre- 
sumed from  the  expressions  in  the  will,  intimating  in  that  case  an 
intention  on  the  part  of  the  testator  equaUy  favourable  to  the  devi- 
sees and  legatees,)  it  was  considered  by  the  Master  of  the  Rolls  a 
case  for  rateable  contribution.  By  the  report  of  that  case,  the  gene- 
ral effect  only  of  the  will  is  thus  stated  ;  "  William  Readhead  by  his 
will,  reciting  that  he  had  contracted  for  the  purchase  of  an  estate, 
directed  his  executors  to  pay  the  purchase  money  for  the  same,  and 
he  devised  the  estate  to  his  natural  son,  the  defendant,  and  he  also 
gave  several  legacies  and  annuities  to  the  other  defendants  :  the 
personal  estate  was  deficient  on  account  of  certain  Scotch  leaseholds, 
not  passing  by  the  will,  which,  according  to  the  Scotch  law,  was  not 
for  that  purpose  formally  executed.  The  Master  found  the  personal 
estate  was  about  sufficient  to  pay  either  the  purchase  money  due,  or 
the  legacies  and  annuities,  but  not  both.  The  direction  to  the  ex- 
ecutors manifests  a  clear  .intention,  in  this  case,  that  the  devisee 
should  take  the  devised  estate,  clear  of  the  lien  ;  and  so  far  it  seems 
a  strong  authority  in. favour  of  the  legatees. 

In  the  case  of  Mackreth  v.  Symmons,(m)  the  following  observa- 
tions of  Lord  Eldon  occur  :  "  I  have  some  doubt  upon  another  point ; 
taking  the  vendor  to  have  the  lien,  whether  the  Court  will  in  the 
case  of  the  death  of  the  vendee  marshal  the  assets,  so  as  to  throw  the 
lien  upon  the  purchased  estate.  It  has  often  been  said,  and  the  case 
of  Coppin  v.  Coppin  stated  as  an  authority,  that  the  Court  will  not 
do  that."  The  Lord  Chancellor  in  his  judgment  takes  no  notice  of 
that  point.  In  that  case  the  vendor  happened  to  be  the  heir  of  the 
vendee ;  so  that  the  estate  was.  at  home  :  and  it  was  held,  that,  be- 
ing also  the  executor,  he  was  entitled  to  retain  the  purchase  money 
out  of  the  personal  assets.  That  decision  requires  a  good  deal  of 
consideration.  If  the  estate  had  been  in.  a  third  person,  the  general 
doctrine  as  to  a  person  having  two  funds  to  resort  to,  might  be  thought 
to  have  an  immediate  application  j  and  the  express  terms  of  the  de- 
cree in  Pollexfen  v.  Moore,  might  be  found  very  inconsistent  with  it. 
In  giving  judgment  upon  a  subsequent  day,  his  Lordship  discussed 
the  cases  on  the  doctrine  of  the  vendor's  lien,  and  observed,  "  the 
next  case  is  Coppin  v.  Coppin,  where  the  doctrine  of  Pollexfen  v. 
Moore,  as  to  marshalling,  was,  practically,  though  I  doubt  whether 
it  ought  to  have  been  admitted;"  and  in  alluding  to  Lord  Hard- 
wicke's  dictum,  that  this  equity  would  not  extend  to  a  third  person, 
Lord  Eldon  continues,  "If  that  is  to  be  understood,  that  this  equity 
would  not  extend  to  a  third  person,  who  had  notice,  that  the  money 
was  not  paid,  Lord  Hardwicke's  subsequent  decisions  contradict 
that :  if  the  meaning  is  that  he  would  follow  the  case  of  Coppin  v, 
Coppin,  and  that,  if  the  vendor  exhausted  the  personal  assets,  the 
legatee  of  the  purchaser  should  not  come  upon  the  estate,  there  is 
great  difficulty  in  applying  the  principle  ;  as  it  would  then  be  in  the 
power  of  the  vendor  to  administer  the  assets  as  he  pleases  ;  having 
a  lien  upon  the  real  estate  to  exhaust  the  personal  assets,  and  dis- 

(/)  Cooper,  R.  50.  (m)  15  Ves.  329. 


SECT.  III.]  in  favour  of  Legatees.  635 

appoint  all  the  creditors ;  who,  if  he  had  resorted  to  his  lien,  would 
have  been  satisfied  ;  and  in  that  respect,  with  reference  to  the  prin- 
ciple, the  case  is  anomalous." 

The  cases  seem  now,  however,  to  have  clearly  settled,  that  the 
vendor's  lien  will  prevail,  not  only  against  the  purchaser,  but  also 
against  his  heirs,  and  every  person  claiming  through  him,  and  even 
against  a  purchaser,  for  a  valuable  consideration,  with  notice.     The 
only  question,  therefore,  now  is,  not  whether  this  lien  extends  to  the 
purchaser,  and  those  claiming  through  him,  but  admitting  the  general 
lien  to  that  extent,  whether  the  real  and  personal  estate  ofWhe  pur- 
chaser shall  be  so  marshalled  as  to  throw  the  lien  on  the  real  estate 
for  the  benefit  of  legatees  of  the  purchaser  :  a  question,  it  will  be  ob- 
served, between  volunteers,  all  of  whom  derive  their  interests  from  the 
testator.  It  seems  to  be  admitted,  that  assets  would  be  so  marshalled 
in  favour  of  legatees,  where  the  lien  is  an  equitable  mortgage,  as 
well  as  where  it  is  a  legal  mortgage  ;  and  there  appears  not  to  be 
any  substantial  difference  between  an  equitable  mortgage  and  the 
vendor's  equitable  lien  for  his  purchase  money  unpaid,  which  is,  by 
construction  of  equity,  a  charge  upon  the  estate  in  the  hands  even 
of  a  purchaser,  for  a  valuable  consideration  with  notice:  it  would, 
therefore,  seem  to  follow,  that  no  substantial  reason  can  be  given 
against  the  marshalling  of  assets  in  this  case.     The  only  plausible 
objection  against  it  was  urged  arguendo  in  the  case  of  Coppin  v. 
Coppin,  and  is  forcibly  stated  by  Mr.  Sugden,  in  the  discussion  be- 
fore  alluded  to,  on  the  ground  of  the  Statute  of  Frauds;  but  no 
practical  inconvenience  is  likely  to  arise  on  this  "head.     The  autho- 
rities, therefore,  may  be  considered,  as  having  established  the  rule 
as  to  marshalling  assets  in  favour  of  legatees,  in  the   case  of  the 
vendor's  lien  in  opposition  to  the  case  of  Coppin  v.  Coppin,  and  the 
dictum  of  Lord  Hardwicke  in  Pollexfen  v.  Moore.     But,  if  the  point 
is  yet  to  be  thought  doubtful,  at  least  the  weight  of  authority  is  in 
favour  of  the  rule,  that  the  purchased  estate,  in  respect  of  the 
vendor's  lien  for  purchase  money  unpaid,  shall  be  marshalled,  so  as 
to  keep  the  heir  or  devisee  to  the  estate ;  or,  if  they  resort  to  the 
personalty  for  payment  of  the  lien,  the  legatees  may  stand  in  their 
place,  and  resort  to  the  purchased  estate  to  the  amount  of  the  per- 
sonal assets  applied  in  discharge  of  the  purchase  money. 

SECT.  III.   The  marshalling  of  assets  in  favour  of  legatees? 
where  the  real  estate  is  neither  charged  with  debts  nor  le- 
gacies, nor  subject  to  a  specific  lien,  but  there  is  merely  a 
general  lien  on  the  real  estate,  which  descends  to  the  heir. 
The  next  rule  is,  that  assets  are  marshalled  in  favour  of  legatees, 
where  the  real  estate  is  neither  charged  with  debts  nor  legacies, 
nor  subject  to  any  specific  lien,  but  there  is  a  general  lien  and  the 
estate  descends  to  the  heir.     This  rule  was  stated  by  Lord  Hard- 
wicke, in  Hanby  v.  Roberts,(n)  thus;  if  there  be  debts  by  specialty 
and  legacies,  and  no  devise  of  the  real  estate,  but  it  descends,  if  the 
creditors  exhaust  the  personal  estate,  the  legatees  may  stand  in  their 
place,  and  come  upon  the  r^al  estate :  This  is  against  an  heir-at-law. 
In  the  case  of  Mdrich  v.  Cooper,(o]  Lord  Eldon  observes,  "  In  the 

(«)  Amb.  127.  (o)  8  Ves.  396. 


' 


636  Marshalling  of  Assets  [Cn.  XV. 

cases  of  legatees,  against  assets  descended,  a  legatee  has  not  so 
strong  a  claim  to  this  species  of  equity  as  a  creditor;  but  the  mere 
bounty  of  the  testator  enables  the  legatee  to  call  for  this  species  of 
marshalling;  that,  if  those  creditors,  having  a  right  to  go  to  the 
real  estate  descended,  will  go  to  the  personal  estate,  the  choice  of 
the  creditors  shall  not  determine,  whether  the  legatees  shall  be  paid 
or  not."(/>) 

The  rule  was  admitted  in  the  case  of  Scottv.  Scott. (q]  There 
Scott  devised  to  Henry  his  eldest  and  only  SQJI  by  a  former  wife,  and 
to  his  hairs  and  assigns,  all  other  his  real  estate  not  before  devised; 
nevertheless,  in  case  he  should  die  without  issue,  not  having  attained 
twenty-one,  then  immediately  after  his  death  under  age  and  without 
issue,  unto  the  testator's  son  William  and  the  heirs  male  of  his  body, 
with  remainders  over.  The  eldest  son  attained  twenty-one.  The 
specialty  creditors,  not  having  a  lien  on  the  estate,  having  exhaust- 
ed the  personal  estate  in  satisfaction  of  their  demands,  the  legatees 
contended  to  stand  in  their  place,  and  come  upon  the.  real  esta-te. 
The  question  was,  whether  the  eldest  son  took  by  devise  or  descent ; 
in  the  latter  case,  the  legatees  would  be  entitled,  in  the  former  not. 
And  the  Lord  Keeper  Henley,  after  having  taken  time  to  consider 
the  point,  gave  his  opinion,  that  the  eldest  son  took  by  devise,  as 
having  under  the  will  a  different  estate  from  that  which  would  have 
descended  to  him;  the  one  being  pure  and  absolute,  the  other  not. 

SECT.  IV.  Exception,  where  the  estate  is  devised. 

But  where  the  estate  is  neither  charged  with  debts,  nor  legacies, 
nor  subject  to  any  specific  lien,  but  there  is  only  a  general  lien  on 
the  estate,  and  the  estate  does  not  descend  to  the  heir,  but  is  devised 
to  a  stranger,  or  to  the  heir  taking  as  a  devisee,  the  assets  are  not 
marshalled  at  least  in  favour  of  general  legatees,  so  as  to  throw  the 
general  bond  creditors  upon  the  real  estate.  The  reason  is,  that 
the  will  affords  evidence  of  as  strong  an  inclination  on  the  part  of 
the  testator  in  fav6ur  of  a  specific  devisee,  as  of  a  general  legatee. 

Thus,  in  the  case  of  Clifton  v.  Burt,(r)  John  Bignold  devised  all 
his  estate  in  Morrow  and  Stoke,  to  his  son  John  Bignold,  in  tail,  re- 
mainder to  Joseph  Burt  in  fee.  He  also  devised  his  copyhold  es- 
tates, which  he  had  before  surrendered  to  the  use  of  his  will,  to 
his  said  son-  J.  Bignold,  in  tail,  remainder  to  the  defendants  Joseph 
Burt,  James  Burt,  and  Elizabeth  Horsnaile,  and  their  heirs,  (subject 
to  the  annuity  therein  mentioned,)  to  the  intent  to  sell  the  copy- 
hold, and  to  apply  the  money  to  make  good  his  debts  and  legacies, 
and  he  devised  the  residue  to  Joseph  Burt,  James  Burt,  and  Eliza- 
beth Horsnaile,  equally.  The  testator  further  devised  to  the  plain- 
tiff, 500Z.  within  three  months  after  the  death  of  the  testator's  son, 
if  he  died  under  age,  and  unmarried,  in  which  case,  he  directed  that 
all  his  personal  estate,  beyond  what  would  pay  his  debts  and  funeral 
expenses,  and  the  5001.  and  the  other  legacies  given  by  his  will, 
should  be  equally  divided  among  Joseph  Burt,  &c.  and  he  appoint- 
ed the  plaintiff  and  two  other  persons  executors.  The  son  died 
under  twenty-one  ;  Lord  Harcourt  decreed,  that  the  rents  of  the 

f /O  See  also  Herne  v.  Meyrick,  1  P.  Will.  202. 

(y)  Arab.  383.  (r)  i  p.  Will.  678. 


SECT.  V.]  in  favour  of  Legatees.  637 

real  estate,  together  with  the  personalty,  should  be  applied  in  pay- 
ment of  debts  and  legacies  ;  but  in  case  of  deficiency,  and  if  it  ap- 
peared that  any  of  the  specialty  creditors  had  been  paid  out  of  the 
personal  estate,  then  the  simple  contract  creditors  and  legatees  were 
to  stand  in  their  place,  and  have  satisfaction  out  of  the  real  estate 
so  far  as  the  personal  estate  had  been  applied  in  payment  of  such 
debts,  in  equal  proportion.  Upon  an  appeal  from  this  judgment, 
Lord  Chancellor  Parker  reversed  so  much  of  the  decree,  as  directed 
a  sale  of  the  freehold  ^^e  for  the  satisfaction  of  the  legacy  of  500J. 
and  observed ;  First,^Hfc  although  equity  will  marshal  assets  in 
favour  of  a  legatee,  as  well  as  of  a  simple  contract  creditor,  yet  every 
devisee  of  land  is  as  a  specific  legatee,  and  should  not  be  broken  in 
upon,  or  made  to  contribute  towards  a  pecuniary  legacy.  Secondly, 
that  it  was  a  rule,  that  if  one  give  a  specific  legacy  of  a  horse  or 
diamond,  and  also  a  pecuniary  legacy  of  5001.  to  B.  and  there  were 
not  assets  to  pay  both,  still  the  specific  legatee  should  be  preferred, 
and  have  his  whole  legacy  ;  for  were  the  executor  to  make  him  con- 
tribute towards  the  pecuniary  legacy,  this  would  be,  pro  tanto,  to 
make  such  specific  legatee  buy  his  legacy,  against  the  manifest  in- 
tention of  the  testator.  Thirdly,  that  if  a  specific  personal  legatee 
should  not  contribute  towards  a  pecuniary  legacy,  much  less  should 
a  specific  devisee  of  land.  Fourthly,  that  if  in  the  principal  cas.e 
the  testator  had  devised  the  500Z.  to  A.  and  'a  term  of  five  hundred 
years  to  B.,  without  leaving  assets  to  pay  the  500Z.  still  the  specific 
legatee  of  the  lease  ought  to  prevail,  without  contributing  towards 
the  pecuniary  legacy,  and  if  such  pecuniary  legatee  should  not 
break  in  upon  a  specific  legatee  of  a  term,  a  fortiori,  he  should  not 
disappoint  the  will  as  to  a  devise  in  fee,  which  was  to  be  favoured 
more  than  the  devise  of  a  term,  in  regard  it  .was  with  more  diffi- 
culty that  a  Court  of  Equity,  in  any  case  broke  in  upon,  or  charged, 
the  real  estate. 

But  there  appears  to  be  a  distinction  in  the  application  of  the  pre- 
ceding rule,  as  to  marshalling  in  favour  of  specific  legatees ;  for  in 
that  case  it  seems,  that  the  real  and  personal  assets  specifically  de- 
vised and  bequeathed,  will,  upon'failure  of  the  general  personal  es- 
tate, be  so  far  marshalled,  (if  indeed  that  term  can  in  strictness  be 
applicable,)  that  the  specific  devisee  and  legatee  shall,  each  in  pro- 
portion to  the  value  of  their  respective  gifts,  contribute  to  the  pay- 
ment of  the  specialty  debt.  But  with  respect  to  a  simple  contract 
creditor,  the  exception  is  not  admitted  ;  for  he  must  resort  alone  to 
the  personal  estate  specifically  bequeathed,  as  that  is  the  only  fund 
liable,  to  his  debt.  This  exception,  in  favour  of  the  specific  legatee 
seems  more  properly  to  fall  under  the  doctrine  of  abatement,  before 
discussed  in  Chap.  V.  sect.  2.(s) 

The  case  of  Long  v.  Short,(t)  seems  to  establish  the  above  excep- 
tion. In  that  case,  David  Long,  seised  in  fee  of  some  lands,  and 
possessed  of  a  lease  for  years  in  other  lands,  and  being  indebted  by 
specialty  and  simple  contract,  devised  a  rent-charge  of  40J.  a  year, 
out  of  the  lease  for  years  to  one  grandson,  the  lease  itself  to  another 
grandson,  and  all  his  land  in  fee  to  the  plaintiff  and  his  family  in 

(«}  p.  253.  (0  1  P.  Will.  403. 

4  M 


638  Mashalling  of  .Assets  [Cn.  XV. 

strict  settlement.  None  of  the  devisees  were  the  testator's  heir,  and 
the  will  was  made  since  the  statute  for  relief  of  creditors  against 
fraudulent  devises. (w)  There  being  a  deficiency  of  assets  to  pay 
debts,  the  question  was,  whether  they  should  be  charged  on  the 
freehold  or  the  leasehold  estate  9  And  it  was  decreed  by  Lord  Cow- 
per  C.,  First,  That  the  devise  of  a  rent-charge  out  of  a  term,  was 
as  much  a  specific  devise,  as  if  it  had  been  of  the  term  itself.  Se- 
condly, That  the  devise  of  a  term  for  years  was  as  much  a  specific 
devise  as  a  devise  of  land  in  fee ;  wherefore  each  being  equally  spe- 
cific devises,  it  would,  in  this  case,  be  an  equal  disappointment  of 
the  testator's  intention  to  defeat  either,  by  subjecting  it  to  the  tes- 
tator's debts.  Thirdly,  That  since  the  statute  of  Fraudulent  De- 
vises, lands  in  fee  were. equally  subject  to  debts  by  specialty  in  the 
hands  of  the  devisee,  as  leases  in  the  hands  of  the  executor  or  lega- 
tee were  to  debts  by  simple  contract  at  common  law;  so  that,  to 
prevent  the  disappointment  of  the  testator's  intention,  the  Court 
thought  it  reasonable,  that  the  devisee  of  the  fee  simple  estate,  and 
the  devisees  of  the  lease  and  annuity,  should  respectively  contribute 
to  the  debts  by  specialty,  in  proportion  to  the  value  of  the  premises  ; 
but  that  as  to  the  debts  by  simple  contract,  if  there  should  not  be 
enough  besides  to  pay  them,  they  should  fall  upon  the  leasehold 
premises  only.  It  was  objected,  that  the  fee  simple  lands  ought  to 
be  more  favoured  than  any  of  the  personal  estate  and  leases,  for  that 
the  latter  had  always  been  decreed  to  go  in  aid  of  the  former,  and 
therefore,  in  this  case,  the  leasehold  estate  ought  to  bear  all  the 
debts  by  specialty,  as  far  as  it  would  extend.  But  this  objection 
was  overruled  by  the  Lord  Chancellor,  for  that  it  might  utterly  dis- 
appoint the  testator's  intention  in  providing  for  his  grandsons  out  of 
the  lease;  though  his  Lordship  allowed,  that  if  the  devise  had  been 
to  B.  of  all  the  rest  of  the  testator's  lands,  it.  would  have  been  a  re- 
siduary, not  a  specific  devise,  and  the  devisee  should  not  have  come 
in  till  after  the  debts  by  specialty  or  otherwise  had  been  paid  out 
of  his  inheritance. 

The  fifth  resolution  in  Haslewood  v.  Pope,(x]  may  probably  at  first 
sight  be  considered  at  variance  with  the  case  last  cited.  That  re- 
solution was  in  these  words  :  "  Where  a  man  dies  indebted  by  bond 
and  leaves  a  personal  estate,  and  devises  lands  to  J.  S.  in  fee,  and 
gives  specific  legacies,  and  the  creditor  by  bond  comes  on  the  per- 
sonal estate  to  be  paid  his  bond ;  the  specific  legatees  shall  not  stand 
in  the  place  of  the  bond  creditor,  to  charge  the  land  devised,  be- 
cause the  devisee  of  the  land  is  as  much  a  specific  devisee  as  the  le- 
gatee of  the  specific  legacy."  It  is  presumed  that  Lord  Talbot,  in 
the  expression  "the  specific  legatees  shall  not  stand  in  the  place  of 
the  bond  creditors  to  charge  the  land  devised,"  must  have  intended, 
not  that  the  devisee  should  not  contribute,  but  that  the  specific  le- 
gatee had  no  right  to  have  the  assets  marshalled  against  the  specific 
devisee,  so  as  to  throw  the  bond  debt  exclusively  upon  the  real  es- 
tate devised,  to  the  exoneration  of  the  personalty  specifically  be- 
queathed. In  this  qualified  sense,  the  resolution  in  question  and 
the  case  of  Long  v.  Short  probably  may  be  reconciled,  but  the  point 
cannot  be  considered  free  from  doubt.  The  two  authorities  last 

( u )  3  Will  &  Mary,  ch.  14.  ( x)  3  P.  Will.  322. 


SECT.  V.]  in  favour  of  Legatees.  639 

cited  are  clearly  distinguishable  from  the  case  of  Cliftonv.  Burt,(y) 
which  decided  that,  in  the  absence  of  any  charge  of  debts,  or  any 
specific  lien  upon  the  estate  devised,  specialty  debts  should  not  be 
thrown  on  the  devised  estate,  in  favour  of  a  general  legatee. 
SECT.  V.  The  extent  to  which  equity  will  permit  legatees  to 

stand  in  the  place  of  specialty  creditors. 

Having  considered,  in  the  preceding  sections,  in  what  cases  equity 
will  and  will  not  marshal  assets  in  favour  of  legatees,  as  between 
them  and  specialty  creditors;  we  proceed  to  inquire,  to  what  extent 
it  will  permit  the  legatees  to  stand  in  the  place  of  specialty  credi- 
tors, in  those  cases,  where  the  assets  are  thus  marshalled.  The  rule 
of  the  Court  is,  that  legatees  shall  not  be  entitled  to  any  greater 
privilege  or  advantage  than  the  creditors  themselves  would  be  enti- 
tled to,  from  the  amount  or  nature  of  their  securities.  The  subject 
has  been  in  a  manner  anticipated  in  the  preceding  sections,  and  suf- 
ficient cases  have  been  adduced  to  show,  that  the  legatees  are  enti- 
tled to  resort  to  the  real  estate,  only  to  the  amount  of  the  specialty 
debt  or  lien  upon  the  real  estate,  in  discharge  of  which  the  personal 
estate  may  have  been  previously  applied.  It  remains  further  to  re- 
mark, that  if  a  creditor  cannot,  under  his  contract,  affect  the  real 
assets  in  the  hands  of  the  heir  or  devisee,  with  the  payment  of  his 
debt,  a  legatee  who  merely  stands  in  his  place,  and  upon  the  same 
terms,  cannot  be  in  a  better  situation.  This  is  the  case  with  all 
debts  by  simple  contract,  or  by  specialty,  where  the  heir  is  not  ex- 
pressly bound  by  the  contract;  and,  if  so  with  them,  legatees  must 
be  in  the  same  predicament. 

The  case  of  Lacam  v.  Mertins(z)  illustrates  this  rule  with  respect 
to  a  simple  contract  creditor,  and  may  therefore  be  applied  to  the 
case  of  a  legatee.     In  that  case,  Mrs.  Hay,  in  the  life  of  her  hus- 
band, levied  a  fine  of  her  estate,  making  it  subject  to  a  debt  of 
2000J.  which  had  been  contracted  by  her  husband.     After  his  death, 
she  borrowed  a  further  sum  of  400?.  and  by  an  indorsement  agreed, 
that  the  estate  so  pledged  should  stand  charged  with  this  400L  and 
not  be  redeemed  without  payment  of  all  these  sums.     The  question 
was,  how  far  simple  contract  creditors  were  entitled  to  come  upon 
her 'real  estate,  in  the  place  of  specialty  creditors.     And  by  Lord 
Hardwicke,  C.,  it  was  observed,  "The  rule  of  the  Court,  as  to  mar- 
shalling assets,  and  directing  simple  contract  creditors  to  stand  in 
the  place  of  specialty  creditors,  pro  tanlo,  to  receive  satisfaction,  is  a 
very  just  and  beneficial  rule,  and  ought  to  be  adhered  to  ;  and 
Court  leans  and  endeavours  to  bring  creditors  within  that  rule,  and 
extends  it  that  all  the  creditors  may  receive  satisfaction  :  yet  it  must 
be  as  between  the  real  and  personal  assets  of  a  person  deceased  ; 
for  the  Court  has  no  right  to  marshal  the  assets  of  a  person  alive  ; 
it  not  feeing  subject  to  such  a  jurisdiction  of  equity  till  the  death. 
Nor  can  the  court  extend  this  relief  to  creditors,  further  than  the 
nature  of  the  contract  will  support  it ;  therefore  it  must  be  £ 
cialty  creditor  of  the  person  whose  assets  are  in  question,  sucJi  a 
might  have  remedy  against  both  the  real  and  personal  estate 
either,  of  the  debtor  deceased :  it  not  being  every  specialty  c 
(y)  Sufira,  p.  636.  (z)  *  Ves.  sen.  312. 


640  Marshall 'in g  of  Assets  [Cn.  XV. 

in  whose  place  the  simple  contract  creditors  can  come  to  affect  the 
real  assets  ;  viz.  where  the  specialty  creditor  himself  cannot  affect 
the  assets,  as  where  the  heirs  are  not  bound  ;  and  such  it  is  here  : 
heirs  not  being  bound  in  the  covenant.  Now,  to  apply  these  general 
rules  to  the  debts  in  question  :  for  such  debts,  upon  which  there 
might  be  remedy  against  her  in  her  life,  or  against  her  representa- 
tive after  her  death,  the  simple  contract  creditors  are  entitled  to  re- 
ceive satisfaction,  pro  tanto ;  and  therefore,  for  the  4001.  as  being  a 
specialty  debt  upon  her  own  bond,  after  the  husband's  death,  satis- 
fied out  of  her  personal  assets  ;  but  not  as  to  the  2000k,  which  there 
is  no  ground  to  make  her  personal  debt,  or  any  debt  of  hers.  It  was 
originally  her  husband's,  nor  could  she  then  make  herself-liable  by 
contract.  There  is  no  covenant  for  her  payment  of  the  money,  nor 
is  there  such  a  covenant,  upon  which  any  remedy  could  lie  against 
her  personal  estate,  unless  she  had  been  guilty  of  a  breach ;  all  the 
covenant  being,  that  the  estate  should  stand  charged.  This  cove- 
nantee,  therefore,  could  not  have  brought  an  action,  or  other  remedy, 
against  her  or  her  representative,  because  no  breach.  Then  there 
is  nobody,  in  whose  place  to  come  pro  tanto;  and  this  is  a  case  for 
which  the  Court  never  would  strain,  however  liberal  they  are  in  such 
cases,  in  the  construction  for  creditors;  for  it  is  material  in  this  case, 
that  it  is  the  husband's  debt,  and  the  intent  was,  not  to  change  the 
nature  of  it,  and  to  make  it  her  debt,  for  it  is  only  recited  in  the  deed, 
and  the  recital  of  a  debt  under  hand  and  seal  has  been  held  to  be 
no  specialty  debt,  for  it  must  stand  upon  its  own  force ;  and  so  I 
have  known  it  determined  by  Sir  Joseph  Jekyll." 

It  may  be  properly  noticed  in  this  place,  that,  in  instances  where 
there  is  not  any  deficiency  of  assets,  if  a  creditor  apply  the  subject 
of  a  specific  bequest  in  satisfaction  of  his  debt,  the  executor  or  resi- 
duary legatee  will  be  obliged  to  make  the  specific  legatee  a  recom- 
pense out  of  the  general  assets,  as  they  can  retain  nothing  to  their 
own  use,  but  the  residue,  after  debts  and  legacies  paid. 

Thus,  in  the  case  of  Bowaman  v.  Reeve,(a)  the  testator  being  seis- 
ed and  possessed  of  a  considerable  estate  in  Holland,  consisting  of 
houses,  goods,  merchandises,  jewels,  and  other  effects,  and  being  a 
native  of  that  country  and  residing  there,  sent  for  a  notary  public 
to  make  his  will,  and,  according  to  the  custom  of  the  country,  an 
instrument  was  drawn  up  in  the  nature  of  a  will,  and  executed, 
whereby  the  testator  gave  some  of  the  houses  to  the  minister  of  the 
Presbyterian  meeting  there,  and  others  to  the  minister  of  the  Re- 
formed Church  there ;  and  then  gave  all  the  residue  of  his  goods, 
chattels,  plate,  jewels,  and  other  effects,  (which  were  very  particu- 
larly enumerated,)  to  the  defendant,  whom  he  made  universal  heir 
and  executor,  and  died  possessed  of  a  very  considerable  personal 
estate  in  England,  besides  what  he  had  in  Holland.  By  the  laws  . 
of  Holland,  there  is  no  distinction  between  real  and  personaPestate, 
but  both  are  equally  liable  to  the  satisfaction  of  creditors  ;  and  there- 
fore, after  the  testator's  death,  his  creditors  in  Holland  took  posses- 
sion of  the  houses  specifically  devised,  in  satisfaction  of  their  debts  ; 
and  though  there  were  other  considerable  effects  in  Holland,  yet  the 
residing  devisee  and  executor  would  not  intermeddle  therewith  ;  be- 

(c)  Pre.  Ch.  577. 


SECT.  V.]  in  favour  of  Legatees.  641 

cause,  if  he  did  so,  by  the  law  of  that  country  he  must  take  upon 
him  the  payment  of  all  the  testator's  debts,  notwithstanding  a  defi- 
ciency of  assets;  but  he  proved  the  will  in  England,  and  possessed 
all  the  testator's  estate  and  effects  here,  upon  which  the  plaintiffs, 
who  were  devisees  of  the  houses  in  Holland,  brought  the  bill 
against  the  executor,  and  residuary  legatee,  to  have  a  recompense 
in  proportion  to  the  value  of  the  houses.  And  the  Chancellor  de- 
creed an  account  and  satisfaction  accordingly;  although  it  was 
urged,  that  those  houses,  by  the  law  of  this*  country,  were  liable  to 
the  payment  of  debts,  and  therefore,  the  specific  devisees  ought  to 
take  them  liable  thereto,  and  that  the  testator  never  intended  to  give 
them  otherwise,  or  to  give  them  any  other  part  of  his  estate.  And  his 
Lordship  also  said,  that  there  was  no  difference  between  a  devise  of 
these  houses,  and  a  devise  of  a  house  or  a  term  for  years,  and  that 
in  those  cases,  if  the  creditors  brought  an  action,  or  sued  out  execu- 
tion upon  a  judgment  against  the  executors,  and  took  the  house  or 
term  for  years,  in  execution,  which  they  might  do,  notwithstanding 
the  specific  devise  thereof,  yet,  most  certainly,  the  executor  or  resi- 
duary legatee,  should  be  obliged  in  equity  to  make  them  a  recom- 
pense ;  for  they  were  to  have  nothing  to  their  own  use  but  the  resi- 
due, after  the  debts  and  legacies  paid,  and  the  residuum  was 
chargeable  with  the  debts ;  though,  as  to  the  creditors,  they  might 
take  what  they  thought  fit  in  satisfaction  of  their  debts,  and  the  enu- 
merating of  particulars  in  this  devise  of  the  residuum,  made  it  no 
more  a  specific  devise,  than  if  he  had  only  said  in  general,  all  the 
rest  of  his  goods  and  chattels,  or  such  like  words ;  and  therefore 
this  residuum  was  liable  to  the  payment  of  debts,  although  the  cre- 
ditors thought  fit  to  fix  on  other  parts  of  his  estate,  and  thereby 
deprived  the  specific  legatee  of  what  was  intended  him. 

SECT.  VI.  The  consideration  of  those  legatees  for  whom  a  Court 
of  Equity  will  not  marshal  assets. 

We  proceed  to  inquire  what  legatees  they  are  for  whom  equity 
will  not  marshal  assets. 

1st.  It  appears  to  be  now  settled,  that  equity  will  not  marshal  the 
assets,  in  instances,  where  the  legatees,  at  the  time  of  the  legacies 
becoming  due,  have  not  an  established  claim  distinctly  and  solely 
upon  the  personal  estate.  If,  therefore,  a  legatee  have  a  claim,  at 
the  testator's  dea'th,  upon  both  the  real  and  personal  assets  for  the 
payment  of  his  legacy,  but  by  some  subsequent  event,  as  the  death 
of  the  legatee  before  the  time  of  payment,  the  remedy  upon  the  real 
estate  is  defeated  ;  the  Court  will  not  marshal  the  assets  in  favour  of 
the  legatee's  representative,  so  as  to  preserve  a  personal  fund  for 
payment  of  the  legacy.  This  Lord  Hardwicke  expressed  as  his 
opinion  in  the  case  of  Prowse  \.Mingdon.(b)  the  facts  of  which  are 
before  stated.  The  executors  were  not  before  the  Court,  and  no 
decree  respecting  the  marshalling  of  assets,  so  that  the  legatee  might 
be  satisfied  out  of  the  personal  estate,  could  be  made  ;  but  his  Lord- 
ship clearly  expressed  his  opinion,  that  it  could  not  be  done  :  "For 
that  the  rule  of  marshalling  assets  in  manner  before  mentioned, 
would  hold,  only  where  it  was  proper  to  be  done  at  the  time  the  Ic- 

(6)  1  Atk.  482.  supra,  p.  435.     Ord  v.  Ord,  2  Dick.  R.  439.  &  P. 


642  Marshalling  of  Assets  [Cn.  XV. 

gacy  first  took  place,  and  not  where  it  was  owing  to  a  fact,  which 
happened  subsequent  to  the  death  of  the  testator,  and  to  a  mere  ac- 
cident, the  death  of  the  legatee  before  twenty-one."  Lord  Hard- 
K'icke,  however,  seems  to  have  altered  his  opinion  in  the  subsequent 
case  of  Reynish  v.  Martin  ;(c)  but  the  rule  as  above  stated  has  been 
revived  by  Lord  Loughborough's  decision  in  the  case  of  Pearce  v 
Loman.(d)  In  that  case,  Joseph  Palmer  devised  all  his  real  estate 
in  the  parish  of  Srodwinson,  in  the  county  of  Dorset,  to  Robert 
Pearce  and  Robert  Taylor,  upon  trust,  to  permit  his  mother  to  re- 
ceive the  rents  and  profits  for  her  life,  and,  after  her  decease,  to  ap- 
ply the  same  for  the  maintenance  and  education  of  Thomas  Pearce, 
son  of  Robert,  until  he  should  attain  twenty-one,  and  when  he  should 
attain  twenty-one,  in  trust  for  him  in  fee  ;  and  if  he  died  under 
twenty-one,  upon  other  trusts.  The  testator  gave  to  Thomas  Pearce, 
and  Robert,  another  son  of  Robert  Pearce  the  elder,  1000Z.,  to  be 
paid  at  twenty -one,  with  interest  at  three  per  cent,  in  the  mean  time 
from  his  (the  testator's)  death,  to  be  applied  for  the  support  and 
education  of  Thomas  Pearce  and  Robert  Pearce  the  younger.  After 
several  other  legacies,  the  testator  gave  other  real  estate  in  the  pa- 
rish of  Crewkerne,  in  the  county  of  Somerset,  and  all  the  residue  of 
his  personal  estate,  subject  and  charged  with  the  payment  of  his 
debts,  legacies,  and  funeral  expenses,  to  his  two  trustees,  in  trust,  to 
see  his  debts,  legacies,  and  funeral  expenses  paid,  and,  after  pay- 
ment thereof,  in  trust  for  his  cousin  John  Perkins  absolutely,  upon 
condition  he  should  discharge  the  testator's  debts,  legacies,  &c.  and 
the  testator  appointed  his  said  trustees  executors.  Robert  Pearce 
the  younger  died  under  twenty-one,  intestate  and  unmarried,  whose 
father  as  administrator  claimed  the  legacy.  The  question  was,  whe- 
ther, as  the  legacy  was  a  charge  upon  the  real  as  well  as  the  person- 
al estate,  the  Court  would  so  marshal  the  assets,  as  to  direct  pay- 
ment of  the  legacy  out  of  the  personal  estate,  although  it  failed  as 
a  charge  upon  the  lands  by  the  death  of  the  legatee  before  the  time 
of  payment.  l^ordLoughborough,C.  after  noticing  Lord  Hardivicke's 
observations  before  stated  in  Prowsv  v.  Jlbingdon,  expressed  himself 
thus ;  "  If  marshalling  could  be  carried  to  the  extent  of  Reynish  v. 
Martin,  it  might  have  been  pursued  in  all  the  cases,  that  have  been 
decided.  There  is  a  singularity  in  the  doctrine,  as  it  now  stands  : 
that,  as  far  as  it  affects  one  fund,  it  is  good ;  as  far  as  it  affects  the 
other,  bad  :  but  it  would  be  still  more  singular,  if  it  shall  sink  in  one 
case,  and  not  in  the  other,  but  the  land  making  good  the  personal 
estate  shall  be  charged.  The  point  was  of  very  little  moment  in 
Reynish  v.  Martin  ;  for  in  Mr.  Forrester's  note,  the  gross  amount  of 
the  personal  estate  is  stated  to  be  100J.  and  Mr.  tyilbraham,  in  Lord 
Hardwicke's  note,  says,  it  is  100Z.  odd  shillings  and  pence,  therefore 
he  speaks  accurately  from  an  account  of  it.  The  legacy  was  SOOJ. 
Therefore,  I  would  not  follow  that  case  to  introduce  a  new  point 
with  regard  to  marshalling  assets  against  established  rules.  The 
assets  cannot  be  marshalled.  It  would  be  directly  against  Prowse 
v.  Abingdon:  the  contingency  is  the  same,  and  I  cannot  charge  tho 
real  estate  indirectly.  I  have  found,  in  Lord  Hardwicke's  note  book, 

c)  3  Atk.  330. 
)  3  Ves.  135.  sec  also  Duke  of  C/iandos  v.  Tulbot,  2  P.  Will.  612. 


SECT.  VI.]  in  favour  of  Legatees.  643 

the  case  of  Lowe  v.  Mosely  referred  to  in  the  argument.  There  is 
very  little  of  it,  but  exactly  what  he  states.  The  note  is  this :  "  Lowe 
v.  Mosely,  upon  the  will  of  Mills ;  300Z.  given  to  his  daughter  :  1 50Z. 
at  the  age  of  twenty-four  ;  150/.  at  twenty-six.  He  devises  his  real 
estate  to  his  son  James,  he  paying  debts  and  legacies.  Several 
questions  upon  acts  the  son  had  done.  He  had  mortgaged  :  ques- 
tioned, whether  the  charge  remained  against  the  mortgagee.  She 
died  between  twenty-four  and  twenty-six.  I  was  of  opinion,  that 
1501.  was  due  ;  but  that  the  other  150JL  sunk  into  the  real  estate,  she 
dying  under  twenty-six."  Not  a  word  said  about  marshalling :  it 
was  a  mixed  fund,  and  a  mortgage,  I  think,  was  one  pf  the  charges 
that  affected  the  personal  estate." 

2.  Equity  has  also  refused  to  marshal(e)  the  assets,  in  favour  of 
legacies  given  to  charitable  uses ;  as  that  would  be  considered  a 
mean  to  evade  the  Statute  of  Mortmain, (/)  and  to  affect,  in  sub- 
stance, a  charge  upon  the  land,  within  the  spirit  of  that  act. 

In  Mogg  v.  Hodges,(g]  Jane  Churchill  devised  her  real  estate  to 
trustees,  to  be  sold,  the  profits  to  be  applied  to  the  uses  of  the  will. 
She  directed  that  her  debts  and  legacies  should  be  paid  out  of  the 
personal  estate,  made  the  trustees  executors,  and  left  them  all  the 
residue  of  her  personal  estate,  and  of  the  money  to  arise  by  sale  of 
the  real,  to  be  given  in  what  charities  they  should  think  proper,  re- 
commending particularly  to  them  the  hospital  at  Bath.  The  ques- 
tion was,  whether  the  assets  should  be  so  marshalled,  that  all  the 
other  legacies  should  be  paid  out  of  the  real  estate,  so  as  to  leave  the 
personal  to  go  to  the  charity1?  And  Lord  Hardwicke  said,  he  thought 
himself  not  warranted  to  set  up  a  rule  of  equity,  contrary  to  the  com- 
mon rules  of  the  Court,  merely  to  support  a  bequest  which  was  con- 
trary to  law. 

In  the  case  of  Attorney  General  v.  Tyndall,(h]  Mary  Packer  de- 
vised all  her  freehold  and  leasehold  estates,  to  trustees  to  sell,  and 
out  of  the  money  to  buy  ground  for  an  almshouse  in  the  parish  of  St. 
James's,  in  the  city  of  Bristol ;  and  likewise  to  erect  an  almshouse, 
and  to  lay  out  the  residue  of  the  money  in  land  ;  and  out  of  the 
rents  and  profits  to  pay  certain  stipends  to  twenty  poor  people,  whom 
she  had  before  appointed  to  be  in  the  almshouses ;  and  until  such 
purchases  could  be  made,  she  directed  the  money  to  be  laid  out  on 
real,  or  Government  securities.  And  incase  the  charity- could  not 
by  law  take  place  according  to  her  directions,  then  she  ordered  her 
trustees  to  lay  out  the  money. in  such  charitable  uses,  intents,  and 
purposes,  as  near  to  her  intention  as  could  be,  and  the  laws  would 
permit.  She  then  gave  the  residue  of  her  estate  to  such  uses,  in- 
tents, and  purposes,  as  aforesaid.  By  a  decree  in  1759,  it  was  declared 
that  the  devise  of  freehold  and  leasehold  estates  to  the  charity  was 
void ;  and  an  account  was  directed  to  be  taken  of  the  personal  es- 
tate. On  further  directions,  the  Master  of  the  Rolls  declared,  that 
if  the  trustees  could  obtain  the  gift  of  a  piece  of  ground  in  St. 
James's  parish,  Bristol,  they  might  erect  an  almshouse  upon  it,  and 
declared,  that  the  trustees  were  entitled  to  have  the  assets  marshal- 

(e)  For  instances  of  apportionment,  vide  infra.  (/)  9  Geo.  2.  c.  36. 

(g)  2  Ves.  sen.  52.  (A)  Amb.  614. 


644  Marshalling  of  Assets  [Cn.  XV. 

led,  by  applying  the  leasehold  in  the  first  place  in  payment  of  debts, 
legacies,  funeral  expenses  and  costs,  in  order  to  leave  more  of  the 
personal  free  and  clear  for  the  purposes  of  the  charity.  The  de- 
fendants having  appealed  from  this  decree,  Lord  Henley,  Chancellor, 
after  argument  at  bar,  and  time  for  consideration,  thus  delivered 
his  opinion  :  "  As  to  the  freehold,  there  is  no  doubt  that  must  go  to 
the  heir  at  law.  The  question  respects  only  the  leasehold,  which, 
by  reason  of  the  devise  being  void,  falls  into  the  residuum.  And 
on  this,  whether  the  Court  shall  marshal  the  assets,  and  by  applying 
the  leasehold  in  the  first  place  to  payment  of  debts,  -leave  the  other 
assets  to  be  applied  to  the  charity,  and  by  that  mean  do  per  obli- 
quurri,  what  could  not  be  done  per  directum.  This  .would  be  a  me- 
thod to  elude  the  statute,  which  I  will  not  do.  The  second  question 
respects  the  building  an  almshouse,  if  the  trustees  can  get  the  ground 
given  them.  The  decree  in  this  part  is  founded  upon  the  precedent 
of  the  Attorney  General  v.  Bowles,  which  is  an  authority  for  the 
Master  of  the  Rolls.  But  I  feel  only  one  authority,  that  of  the  House 
of  Lords,  which  is  a  superior  court ;  no  other  authority  has  any  in- 
fluence on  my  judgment.  The  precedent  has  no  influence  upon  me ; 
it  is  contrary  to  the  spirit  of  the  statute.  In  common  sense,  it  is 
laying  out  money  in  land  :  it  improves  the  scite,  is  demandable  in  a 
pr&cipe,  and  is  a  purchase  of  so  much  realty  ;  such  a  determination 
is  opening  a  door  to  avoid*  the  statute."  And  his  Lordship  held  the 
devise  of  the  residue  to  be  void,  as  being  given  to  be  laid  out  in 
lands  and  tenements.  And  the  decree  was  reversed. 

Again  in  Foster  v.  Blagden,(i)  Sarah  Knapp  devised  her  real  and 
personal  estate,  after  payment  of  her  debts,  funeral  expenses,  and 
charges  of  proving  her  will,  to  the  plaintiffs,  in  trust,  to  dispose 
thereof,  and  directed  the  trust  money  to  be  paid  to  certain  charita- 
ble uses.  The  question  was,  whether  the  Court  would  marshal  the 
assets,  and  order  the  debts  to  be  paid  out  of  the  real  estate,,  in  order 
that  the  personal  might  be  left  clear,  so  that  the  devise  to  the  charity 
might  take  effect.  Smith,  Baron,  who  sat  for  the  Lord  Chancellor, 
declared  his  opinion,  that  the  debts  could  not  be  thrown  upon  the 
real  estate ;  and  that  the  cases  of  Mogg  v.  Bath  Hospital,  and  the 
Attorney  General  v.  Tyndall,  were  in  point. 

Again,  inHillyardv.  Taylor, (k)  William  Brown,  after  devising 
an  estate  to  the  plaintiff  and  his  family,  and  several  legacies,  be- 
queathed all  his  personal  estate,  together  with  his  estate  at  Foxfield, 
held  by  lease  of  the  Bishop  of  Winchester,  descendible  to  his  right 
heirs,  in  trust,  to  sell  the  said  estate,  and  .out  of  the  money  to  pay 
his  just  debts,  funeral  expenses,  and  several  legacies  ;  and  the  War- 
den and  Fellows  of  Winchester  College  100/.,  to  be  disposed  of  as 
they  should  think  fit,  for  the  use  of  superannuates,  not  succeeding 
to  New  College :  to  the  county  hospital  at  Winchester,  501. ;  to  the 
Governors  of  the  charity  for  relief  of  poor  widows  and  children  of 
clergymen,  GOO/.  And  after  reciting,  that  it  was  uncertain  what  his 
effects  might  amount  to,  he  gave  whatever  remained,  after  payment 
of  debts,  legacies,  and  other  charges,  to  his  executors,  to  be  disposed 
of  to  such  charitable  uses  as  they  should  thmk  fit,  and  appointed 

(i)  Amb.  704.  (*)  Amb.  713. 


SECT.  VI.]  in  favour  of  Legatees.  645 

Taylor  and  Knapp  executors.  In  1761,  the  Master  of  the  Rolls  de- 
creed, that  if  the  personal  estate  should  be  wholly  or  in  part  ex- 
hausted, in  satisfying  the  debts  and  funeral  expenses,  and  such  of 
the  legacies  as  were  not  given  to  charity,  then  the  legatees  of  the 
charitable  bequests  should  stand  in  the  place  of  specialty  creditors, 
and  receive  a  satisfaction  pro  tanto,  out  of  the  real  estate :  but  with- 
out prejudice  to  the  question,  whether  the  legacy  of  100?.  given  to 
the  Warden  and  Fellows  of  New  College,  was  within  the  saving 
clause  of  the  Statute  of  Mortmain,  which  might  arise,  in  case  the 
before  mentioned  marshalling  of  assets  should  not -be  sufficient  to 
furnish  the  whole  of  the  legacies  given  to  charities  ;  and  he  directed 
an  account  of  the  rents  and  profits  of  the  Hampshire  estate,  and  the 
balance  to  be  applied  to  make  good  the  deficiency  of  the  personal 
estate  ;  and  if  those  funds  should  prove  deficient,  the  real  estate  in 
Hampshire  to  be  sold,  and  applied  to  make  good  the  deficiency. 
The  personal  estate,  and  the  rents  and  profits  of  the  Hampshire 
estate,  proving  deficient,  that  estate  was  sold,  and  the  purchase 
money  paid  into  the  Bank,  and  laid  out  in  4295Z.  15s.  Sd.  three  per 
cent,  annuities.  After  twelve  years,  there  was  an  appeal  from  the 
above  decree,  occasioned  by  the  determination  of  Foster  v.  JBlag- 
den.(l)  And  the  Lord  Chancellor,  without  hearing  the  reply,  re- 
versed the  decree,  so  far  as  related  to  the  charitable  legacies  to 
Winchester  Hospital,  and  for  the  relief  of  widows  and  children  of 
clergymen,  on  the  authority  of  Foster  v.  Blagden,  and  directed  an 
inquiry,  what  fund  was  established  at  Winchester  College,  to  defray 
the  expense  of  superannuates  at  either  of  the  Universities ;  and, 
after  ordering  the  costs,  declared  that  the  residue  of  the  three  per 
cents,  belonged  to  the  heir-at-law. 

In  Makeham  v.  Hooper,(m]  Joseph  Lloyd,  being  seised  of  free- 
hold and  copyhold  estates,  and  possessed  of  leasehold  and  other 
personal  property,  devised  to  trustees  all  his  freehold,  leasehold, 
copyhold,  and  personal  estates  to  sell,  and  out  of  the  money  to  pay, 
among  other  legacies,  2001.  to  the  Bath  Infirmary,#and  other  chari- 
table legacies  to  the  amount  of  1200Z. ;  also  2001.  to  erect  a  monu- 
ment to  the  memory  of  J.  Curie;  and  after  payment  of  several  ge- 
neral legacies,  to  pay  the  surplus  of  the  money  arising  from  the  real 
and  personal  estates,  unto  the  plaintiff,  and  D.  Evans,  and  appointed 
them  executors.  Evans  died  in  the  life  of  the  testator.  By  codicil, 
among  other  legacies,  the  testator  gave  to  two  of  the  defendants 
1001.  in  trust  for  another  charity,  (but  without  naming  any  fund  out 
of  which  it  was  to  be  paid),  and  ordered  a  monument  to  be  erected 
to  himself.  He  afterwards  made  a  second  codicil,  by  which  he  gave 
some  legacies,  and  died  in  November  1781,  leaving  the  plaintiff  his 
surviving  executor  and  residuary  legatee,  and  two  others  of  the  de- 
fendants his  heirs  at  law,  and  next  of  kin,  who  had  assigned  their 
claims  to  the  plaintiff.  The  bill,  after  the  usual  prayer  in  regard  to 
the  will  and  codicils,  and  the  general  personal  estate,  prayed  that 
the  charitable  legacies  might  be  declared  void,  and  to  fall  into  the 
residue ;  and  that  the  real  estate  might  be  sold,  and  the  clear  re- 
sidue of  the  money,  as  also  the  testator's  personal  estate  might  I 

(/)  Sujira,  preceding  page.  (w)  4  Bro.  C.  C.  153. 

VOL.  r.  4  N 


646  Marshalling  of  Assets  [Cn.  XV. 

declared  to  belong,  and  be  paid  to  the  plaintiff  as  residuary  legatee. 
The  cause  was  heard  before  Lord  Thurlmv,  C.  in  February  1784; 
and  by  the  decree,  the  will  and  codicils  were  declared  well  proved, 
and  ought  to  be  established  and  the  trusts  performed ;  and  it  was 
referred  to  the  Master  to  take  the  proper  accounts,  and  to  distin- 
guish what  arose  from  chattels  personal,  and  chattels  real ;  and  he 
reserved  the  consideration,  whether  the  charity  legacies  were  to  be 
paid,  and  in  what  manner,  and  all  further  directions  till  after  the 
Master's  report:  from  which  report,  it  appeared,  that  the  money 
received  by  the -plaintiff  and  the  trustees,  amounted  to  198SZ.  Is.  1\d., 
and  that  they  had  paid  10311.  15s.  bd. :  so  that  there  remained  a 
balance  of  950/.  12s.  2%d.  That  the  legacies,  besides  the  chari- 
table ones,  amounted  to  4490Z.  So  that  the  personal  estate  fell 
short  of  paying  the  same  in  3539Z.  7s.  9%d.;  and  that  the  real  and 
leasehold  estates  sold  for  above  6000/.  The  question  was,  whether 
the  assets  should  be  marshalled'?  And  it  was  decreed  in  the  nega- 
tive; Ashurst,  Lord  Comm.  observing,  that  "  he  thought  they  were 
bound  by  the  recent  cases  with  respect  to  the  question  of  marshall- 
ing: that  it  did  not  appear  what  was  the  reason  of  the  turn  in  the 
cases,  but  as  the  decisions  had  taken  that  course,  they  would  not 
alter  them."  But  the  legacy  to  the  Bath  Infirmary,  was  ordered  to 
be  paid,  in  consequence  of  the  Act  of  the  19th  Geo.  3.  c.  23.  per- 
mitting that  charity  to  take  in  mortmain. 

The  preceding  authorities  clearly  settle  the  rule,  that  the  Court 
of  Chancery  will  not  marshal  the  assets,  so  as  to  throw  the  debts 
upon  the  real  estate  and  leave  the  personal  a  clear  fund  for  the  cha- 
rity; but  it  will  be  proper  in  this  place  to  notice  a  rule  of  the  Court 
in  the  administration  of  the  general  residue  bequeathed  to  a  charity, 
and  consisting  partly  of  mortgage  securities  and  leaseholds  which 
savour  of  the  realty,  and  partly  of  assets  purely  personal.  In  such 
case,  the  bequest  of  the  residue,  so  far  as  regards  the  mortgage 
securities  and  leaseholds,  fails,  as  being  within  the  Statute  of  Mort- 
main, and  lapses  for  the  benefit  of  the  next  of  kin.  As  between 
such  next  of  kin,  who  are  considered  in  the  light  of  legatees  of  the 
mortgage  securities  and  leaseholds,  and  the  charities  which  have  an 
indisputable  right,  as  legatees  of  the  other  personalty  not  partaking 
of  the  nature  of  real  estate,  the  Court  will  not  allow  a  creditor  or 
general  legatee  to  resort  exclusively  to  the  assets  purely  personal, 
to  the  disappointment  of  the  charity,  but  will  direct  a  rateable  con- 
tribution by  the  charities  and  next  of  kin,  in  proportion  to  their  re- 
spective interests,  for  the  satisfaction  of  the  debts  and  legacies.  In 
the  exercise  of  this  branch  of  equitable  jurisdiction,  the  Court  adopts 
a  rule  well  established  by  the  case  on  marshalling,  namely,  that  a 
person,  having  two  funds  to  resort  to  for  the  satisfaction  of  his  de- 
mand, shall  not,  by  his  option  of  resorting  to  either  of  those  funds, 
determine  whether  one  of  two  parties,  whose  equities  are  equal, 
shall  be  paid  or  not. 

The  above  rule  respecting  contribution  does  not  appear  so  dis- 
tinctly stated,  that  it  was  acted  upon  in  the  case  of  Attorney  Gene- 
ral y.  Winchelsea.(n]  Nor  indeed  has  the  Editor  discovered  an 
earlier  case,  wherein  it  is  explicitly  laid  down.  In  the  case  just  men- 

(n)  3  Bro.  C.  C.  373. 


SECT.  VI.]  in  favour  of  Legatees.  647 

tioned,  and  which  will  be  more  fully  stated  in  a  subsequent  part(o) 
of  this  work  for  another  point,  the  Rev.  Robert  Chapman  be- 
queathed the  residue  of  his  personal  estate  to  trustees,  upon  trust 
to  invest  it  in  the  funds,  and  apply  the  annual  produce  for  the  sup- 
port of  certain  charities. 

A  considerable  part  of  this  residue  consisted  of  money  secured  on 
mortgage.  One  of  the  questions  in  the  cause  was,  whether  the  be- 
quest of  the  residue,  so  far  as  it  related  to  the  real  securities,  was 
not  void,  as  being  within  the  Statute  of  Mortmain,  and  it  was  in- 
sisted for  the  next  of  kin,  that  they  were  entitled  to  these  mortgage 
securities.  The  Master  of  the  Rolls,  as  appears  from  a  note  of  part 
of  his  judgment  given  in  Belt's  edition,  page  380,  first  considered 
the  cases  as  proving  that  the  assets  could  not  be  marshalled  ;  and 
then  said  that  he  conceived  this  case  to  stand  upon  the  same  ground, 
as  if  the  testator  had  specifically  bequeathed  his  mortgages  to  one  per- 
son, and  the  other  part  of  his  personal  estate  to  another.  In  such  a 
case,  they  should  contribute  to  the  payment  of  the  debts  and  legacies 
rateably,  according  to  the  amount  of  what  they  each  took.  The  next 
of  kin,  in  that  case,  he  considered,  as  if  he  had  been  a  legatee  of 
the  mortgages,  and  therefore  decreed  that  the  payment  of  the  debts 
and  legacies  should  be  made  out  of  the  mortgages,  and  out  of  the 
rest  of  the  personal  estate  rateably  according  to  the  amount  of  each 
of  them  respectively. 

The  rule  was  stated  in  Howse  v.  Chapman,(p]  arguendo,  by  the 
counsel  for  the  next  of  kin,  and  acted  upon  by  the  Court.  In  that 
case,  Leonard  Coivard,  after  enumerating  several  specific  parts  of 
his  residuary  personal  estate,  gave  the  same,  after  payment  of  debts, 
legacies,  funeral,  and  testamentary  expenses,  to  be  appropriated  to 
the  improvement  of  the  city  of  Bath.  There  were  parts  of  the  per- 
sonal estate  not  enumerated,  and  undisposed  of.  After  the  testators 
death  the  bill  was  filed  by  the  executors  to  establish  the  will,  and 
ascertain  the  rights  of  the  parties ;  the  heir  at  law  and  next  of  km 
contending,  that  the  bequest  of  the  residue  was  void  for  uncertainty 
of  its  object,  or,  if  not  void  on  that  ground,  it  was  void  under  the 
statute  9  Geo.  2.  c.  36.  as  to  such  parts  as  were  of  the  nature  or 
consisted  of  real  property.  By  the  decree  the  will  was  established, 
and  the  trusts  directed  to  be  carried  into  execution,  except  as  to  the 
money  secured  on  real  estate  ;  and  an  account  of  the  personal  estate 
was  directed.  From  the  Master's  report,  it  appeared  that  part  of  the 
personal  estate,  which  was  held  to  pass  by  the  bequest  for  the  im- 
provement of  the  city  of  Bath,  consisted  of  mortgages  to  the  amount 
of  49501  certain  bonds  of  the  commissioners  for  the  improvement 
of  the  city  of  Bath,  Bath  corporation  and  turnpike  bonds  The 
cause  coming  on  for  further  directions,  a  point  was  made  on  behal 
of  the  next  of  kin,  that  the  debts,  legacies,  and  funeral  expenses,  and 
the  costs  of  all  parties  were  to  be  paid  in  equal  shares,  out  ot  the 
personalty  bequeathed  for  the  improvement  of  the  city  of  Bath  and 
the  personal  estate  undisposed  of.  On  behalf  of  the  next  of  kin 
Attorney  General  v.  Winchelsea  was  cited,  and  it  was  urged,  .t 
«  where  a  residue  is  left  for  charitable  purposes  including  ??rtga 
ges  and  other  interests  that  cannot  go  to  the  charity,  the  del 

(o)  Vol.  2.  chap.  19.  sect.  7.  (/O  *  Ves«  542' 


648  Marshalling  of  Jlsscts  [Cn.  XV. 

legacies  shall  be  paid  out  of  the  two  parts  of  the  estate  pro  rata :" 
and  the  Lord  Chancellor  said,  the  bequest  of  the  city  of  Bath  of 
particulars  enumerated  was  specific,  that  the  articles  not  enumera- 
ted went  to  the  next  of  kin,  and  that  the  general  residue  was  to  be 
applied,  in  the  first  place,  in  payment  of  debts  and  other  charges. 
And  he  further  observed,  that  the  case  was  directly  within  Attorney 
General  v.  Winchelsea^  with  regard  to  the  mortgages  and  other 
things  that  were  taken  out  of  the  bequest ;  because  the  law  takes 
them  out  of  it.  The  decree  declared,  that  the  bequest  for  the  im- 
provement of  the  city  of  Bath  was  a  charitable  bequest,  and  that 
the  mortgages  and  bonds  of  the  commissioners  for  the  improvement 
of  the  city  of  Bath  and  the  turnpike  bonds  did  not  pass,  but  were 
undisposed  of  by  the  will,  and  belonged  to  the  next  of  kin ;  and  it 
was  directed  ^jat  the  Master  should  distinguish  such  of  the  particu- 
lars of  the  personal  estate  specifically  bequeathed  for  the  improve- 
ment of  the  city.of  Bath,  as  were  well  given,  from  such  particulars 
as  did  not  pass  thereby,  but  belonged  to  the  next  of  kin  ;  and  it  was 
further  ordered,  that  the  same  be  applied  pro  rata  for  the  payment 
of  so  much  of  the  testator's  debts,  legacies,  and  funeral  expenses, 
and  of  so  much  of  the  costs  as  the  general  residue  of  the  testator's 
personal  estate  undisposed  of  by  his  will  would  not  extend  to  pay, 
and  that  such  particulars  of  the  personalty,  specifically  bequeathed 
for  the  improvement  of  the  city  of  Bath,  as  did  not  pass,  be  divided, 
after  payments  before  directed,  among  the  testator's  next  of  kin, 
according  to  the  Statute  of  Distribution ;  and  that  such  particulars, 
specifically  bequeathed  for  the  improvement  of  the  city  of  Bath,  as 
were  well  given,  after  the  payments  thereout  directed,  be  paid  to 
the  defendant  the  clerk  to  the  commissioners  for  the  improvement 
of  the  city  of  Bath. 

Again,  in  Paice  v.  The  Archbishop  of  Canterbury, (q)  Mary 
Wilks  gave  the  remainder  of  her  different  bequests  to  the  Arch- 
bishops of  Canterbury  and  York  for  the  time  being,  in  trust  for 
charitable  purposes,  and  bequeathed  her  house  in  Grosvenor  Square, 
and  all  her  property  in  London,  to  be  sold ;  and  after  payment  of  a 
mortgage,  the  monies  arising  from  the  sale  to  be  applied  to  the 
general  purposes  of  her  will.  The  first  question  was,  if  the  general 
residue  passed  to  the  Archbishops  of  Canterbury  and  York  for 
charitable  purposes ;  and  secondly,  if  so,  whether  the  money  pro- 
duced by  the  sale  of  the  testatrix's  leasehold  house  in  Grosvenor 
Square,  and  freehold  estate  in  London,  were  liable  to  any  part  of 
the  debts,  legacies,  and  costs.  The  Lord  Chancellor  decided,  that 
as  to  the  real  estate  devised  to  the  charity  and  personal  estate  con- 
nected with  land,  as  leaseholds  and  mortgages,  the  disposition  was 
void  under  the  statute  ;(r)  and,  at  the  conclusion  of  his  judgment, 
observed,  the  same  arrangement  must  take  place  by  apportionment 
of  the  charges  between  the  funds,  as  in  the  case  of  Attorney  General 
v.  Winchelsea. 

Lastly,  in  the  case  of  Curtis  v.  Hutton,(s]  the  above  rule  received 
a  further  confirmation.  In  that  case,  George  Hutton  directed  his 
real  estates  to  be  sold,  and  declared  that  the  produce  of  such  sale, 
and  the  rents  in  the  mean  time,  should  constitute  part  of  his  per- 

(y)  14  Yes.  372.  (r)  9  Geo.  2.  c.  36.  (»)  14  Ves.  537. 


SECT.  VI.]  in  favour  of  Legatees.  649 

sonal  estate,  and  be  subject  to  the  trusts  thereof :  and  he  bequeathed 
his  personal  estate,  and  the  monies  to  be  produced  from  his  real 
estate,  to  trustees,  to  pay  debts  and  legacies.  He  then  bequeathed 
200Z.  to  the  trustees  of  a  charity  school  in  Butt  Lane,  Deptford,  for 
the  purpose  of  purchasing  lands  contiguous:  and  he  declared  the 
trusts  of  the  residue  of  his  personal  estate  to  be  for  such  purposes 
as  he  should  by  deed  or  codicil  appoint.  By  codicil,  the  testator 
directed  the  trustees  to  lay  out  the  trust  monies  in  the  purchase  of 
freehold  estate  in  Great  Britain,  or  in  the  public  funds,  or  in  other 
proper  security,  the  income  of  the  trust  fund  to  be  applied  in  an 
establishment  for  students  in  the  King's  College  of  Old  Aberdeen. 
The  bill  was  filed  by  the  trustees  against  the  widow  and  only  daugh- 
ter of  the  testator,  to  have  the  will  established,  and  trusts  carried 
into  execution.  The  answer  insisted  that  the  bequests  of  the  resi- 
due to  the  college  at  Old  Aberdeen  of  the  200Z.  to  the  charity  were 
void,  and  submitted,  whether,  if  the  former  were  good  as  to  the  per- 
sonal estate,  it  ought  not  to  be  postponed  until  after  payment  of 
debts  and  legacies.  It  was  contended  on  their  behalf,  that,  suppos- 
ing the  disposition  void,  the.  debts,  legacies,  and  annuities  must  be 
thrown  upon  the  fund  which  was  effectually  given  to  the  charity ; 
and  also  upon  that  fund,  the  disposition  of  which  failed,  in  the"  pro- 
portion the  respective  funds  bore  to  each  other,  according  to  the 
rule  established  in  the  Attorney  General  \.  Winchelsea.  The  Mas- 
ter of  the  Rolls  said,  the  rule,  as  contended  for,  was  settled  by  many 
cases :  And  he  determined  also,  that  nothing  which  was  the  pro- 
duce of  the  testator's  real  estate  passed  under  the  dispositions  to 
the  charities. 

The  reader  will  observe  the  distinction  between  the  rule  of  con- 
tribution established  by  the  class  of  cases  just  discussed;  and  the 
case  of  marshalling.  By  marshalling,  the  Court  would  indirectly 
allow  the  charge  upon  the  real  estate  for  the  benefit  of  a  charity, 
contrary  to  the  Statute  of  Mortmain;  and  the  practical  result  would, 
in  most  cases,  be  that  of  excluding  the  next  of  kin,  wholly,  or  in 
part,  from  that  portion  of  the  residue  which  fails  by  the  statute,  and 
to  which  by  law  they  have  an  equal  right  with  legatees,  to  whom 
legacies  are  effectually  given.  On  the  other  hand,  the  Court,  in 
adopting  the  rule  of  contribution  before  stated,  considers  the  equi- 
ties of  the  next  of  kin  and  the  charities  equal,  and  therefore  directs 
a  rateable  contribution  from  each  toward  the  payment  of  debts  and 
legacies. 

SECT.  VII.  The  mode  in  which  equitable  assets  are  distributed 
among  legatees. 

When  assets  are  marshalled  in  favour  of  a  legatee,  the  personalty 
having  been  wholly  or  in  part  applied  in  payment  of  a  specialty 
debt,  we  have  seen  that  the  legatee  may  resort  to  the  real  estate  to 
the  amount  of  the  personalty  applied  in  satisfaction  of  the  specialty 
debt ;  and  in  such  case,  if  there  are  several  legatees,  they  will  be 
paid  pari  passu;  and  if  the  fund  be  insufficient  to  satisfy  the  whole 
of  their  respective  legacies,  each  legatee  must  abate  in  proportion 
to  the  amount  of  his  legacy.  But  suppose  the  case  is  not  one  of 
marshalling,  there  being  but  one  fund  for  the  payment  of  all  claim- 


650  Marshalling  of  Assets  [Cn.  XV. 

ants ;  as,  for  example,  where  there  are  not  any  personal  assets,  and 
the  real  estate  is  either  devised  upon  trust  to  pay,  or  only  charged 
with  the  payment  of  debts  and  legacies ;  in  such  case  the  assets 
are  equitable,  and  it  remains  to  consider  in  the  present  section,  the 
mode  in  which  such  equitable  assets  are  distributed  among  creditors 
and  legatees. 

It  maybe  proper  in  this  place, while  mentioning  equitable  assets, 
to  premise,  that  before  the  statute  of  3.  Will  fy  Mary,  c.  14.  a  spe- 
cialty creditor  had  not  at  Common  law  any  remedy  for  the  recovery 
of  his  debt  against  a  devise  of  the  real  estate  for  the  payment  of 
debts, (f)  but  he  was  obliged  to  resort  to  the  assistance  of  a  court  of 
equity.  The  estate,  therefore,  thus  devised  was  considered  equita- 
ble assets.  By  the  statute  above  mentioned,  devises  of  real  estate 
were  made  void  against  specialty  creditors,  their  real  and  personal 
representatives  ;  in  favour  of  whom  remedies  were  given  by  the  sta- 
tute against  the  heir  and  devisee,  without  the  aid  of  a  court  of  equity. 
In  this  act,  however,  there  is  a  proviso  excepting  out  of  its  operation 
devises  of  the  real  estate  for  the  payment  of  debts,  or  portions  for 
children  under  articles  or  settlement  before  marriage ;  so  that  such 
devises  for  payment  of  debts  and  portions,  continue  now,  as  they 
were' before  the  statute,  subject  to  equitable  jurisdiction;  and  con- 
sequently real  estates  thus  devised  are  assets  distributable  upon  the 
principle  of  the  Court,  that  equality  is  equity.  It  is  now  clearly 
settled,  that  real  estate  devised  upon  trust  to  pay,  or  merely  charg- 
ed^) with  the  payment  of  debts,  and  although  descending(x)  upon 
the  heir  thus  charged,  are  equitable  assets,  and  distributable,  pari 
passu,  among  creditors,  whether  by  specialty  or  simple  contract. 

Thus  in  the  case  of  Plunket  v.  Penson,(y)  Penson  the  testator, 
who  was  cestui  que  trust  of  a  real  estate,  mortgaged  it  in  fee,  and 
being  entitled  to  the  equity  of  redemption,  devised  the  estate  to  his 
son  and  his  heirs,  subject  to  the  payment  of  debts,  annuities,  and 
legacies,  and  died  indebted  by  bond  and  simple  contract.  The 
questions  were,  whether  the  assets  of  the  testator  Av.ere  legal  or 
equitable  9  and  whether  the  simple  contract  creditors  were  to  come 
in  pari  passu  with  the  plaintiff,  the  bond  creditor,  or  whether  the 
bond  creditor  should  be  paid  in  course  of  administration.  It  was 
insisted  for  the  simple  contract  creditors,  that  the  devise  to  an  heir 
of  an  estate  charged  with  debts  was  the  same  thing  as  devising  it  in 
trust  to  him  for  the  payment  of  debts;  that  they  were  equitable 
assets,  and  all  creditors  entitled  to  come  in  pari  passti:  that  the 
bond  creditor  could  not  recover  at  law,  because  the  testator,  who 
was  obligor,  had  not  the  legal  estate,  and  the  estate  was  in  mort- 
gage, so  that  he  was  obliged  to  come  into  a  court  of  equity  for  a 
satisfaction.  Lord  Hardwicke  decided,  that  the  assets  were  equit- 
able, and  distributable  among  the  creditors,  without  any  distinction 
as  to  priority  ;  and  he  directed  an  account  of  the  testator's  personal 
estate  to  be  applied  in  payment  of  his  debts,  in  a  course  of  adminis- 
tration ;  and  if  that  should  not  be  sufficient,  then  an  account  of  the 
rents  and  profits  of  his  real  estate  to  be  applied  in  payment  of  the 
debts  not  satisfied  by  the  personal  estate,  pari  passu.  And  if  the 

(0  Plunket  v.  Penson,  2-Atk.  291.  (it)  Bailey  v.  JZfcins,  7  Ves.  319. 

(x)  Hargrove  v.  Tindal,  1  Bra  C.  C.  136.  note.  (y)  2  Atk.  290. 


SECT.  VII.]  in  favour  of  Legatees.  651 

personal  estate,  and  the  rents  and  profits  of  the  real  should  not  be 
sufficient  to  pay  the  debts,  it  was  ordered,  with  the  consent  of  the 
mortgages,  that  the  real  estate  should  be  sold,  and  the  money,  after 
payment  of  the  mortgages,  applied  in  discharge  of  what  should  be 
remaining  due  to  the  other  creditors  of  the  testator  pari  passu.  And 
that  if  any  of  the  creditors  by  specialty  should  have  exhausted  any 
part  of  the  personal  estate  in  satisfaction  of  their  debts,  they  were 
not  to  receive  any  further  satisfaction  out  of  the  real  estate,  until 
the  other  creditors  should  be  made  up  thereout  equal  to  them.(z) 

But  this  equality  of  distribution  is  confined  to  those  only,  whose 
equities  are  equal,  as  to  creditors  among  themselves  ;  and  is  not  ex- 
tended to  legatees  jointly  with  creditors;  for  the  latter  will  be  pre- 
ferred to  the  former ;  and  this,  although  the  trust  be  for  the  payment 
of  debts  and  legacies,  or  although  the  real  estate  be  charged  with 
the  payment  of  both.  There  is,  indeed,  an  anonymous  case  in  V&r- 
non,(a)  the  decision  in  which  directed  that  the  debts  and  legacies 
should  be  paid  in  proportion ;  as  the  assets  were  equitable ;  there 
are  also  dicta  in  other  cases(fc)  corresponding  with  that  direction. 
There  are  two  cases,  however,  determined  in  favour  of  the  priority 
of  creditors,  viz.  Sir  John  Bowie's  case,(c)  determined  upon  a  re- 
hearing by  Lord  JVottingham,  in  which  he  reversed  the  decree  of 
Lord  Keeper  Bridgman  in  favour  of  an  indiscriminate  distribution 
among  the  creditors  and  legatees  ;  and  declared  his  opinion,  "  that 
in  the  case  of  trust  for  the  payment  of  debts  and  legacies,  the  debts 
ought  to  be  preferred  and  satisfied,  before  the  legatees  should  have 
the  benefit  of  the  trusts." 

Lord  Harcourt  also  pronounced  a  similar  decree  in  the  case  of 
"Petre  v.  Bruen.(d)  There,  a  testator  before  the  Statute  of  Fraudu- 
lent Devises,  devised  a  freehold  estate  to  his  second  son  in  fee,  sub- 
ject to  the  payment  of  his  debts,  and  a  legacy  of  500Z.  The  question 
being,  whether  the  debts  should  be  preferred  to  the  legacy  7  Lord 
Harcourt  said,  he  would  expound  the  testator's  meaning,  as  it  ought 
to  be,  to  pay  his  debts  before  he  was  charitable,  and  therefore  de- 
creed the  debts  to  be  first  paid.(e) 

(z)  See  also  Silk  v.  Prime,  1  Bro.  C.  C.  138.  note.  Bailey  v.  Ekim,  7  Ves.  319. 
Shifihard  v.  Lutnvidge,  8  Ves.  26.  Clay  v.  Willis,  1  Barn,  and  Cress.  364.  and  the 
cases  cited  in  the  judgments. 

(a)  2  Vol.  133.  (A)  2  Vern.  405.     2  P.  Will.  551. 

(c)  Cited  by  Lord  Com.  Hutchins  in  Greaves  v.  Powell,  2  Vern.  248. 

(rf)  Stated  in  Walker  v.  Meager,  2  P.  Will.  551. 

(e)  See  also  Kidney  v.  Coussmaker,  12  Ves.  154.  per  Sir  William  Grant.  Walk- 
er v.  Meager,  Moseley  Rep.  204.  2  P.  Will.  551.  Maylen  v.  Hoofier,  Ca?. 
Temp.  Hard.  206. 


END  OF  VOL. 


A      rln  r\  ' 


